FOR THE COUNCIL MEETING OF MAY 2, 2023
COUNCIL AGENDA REPORT
TO: City Council
FROM: City Manager
Prepared by: Director of Utilities
SUBJECT: AGREEMENT WITH DISH WIRELESS L.L.C. FOR A
COMMUNICATIONS SITE LICENSE AGREEMENT AT ATKINSON
PARK, 1000 NORTH RAILROAD AVENUE
RECOMMENDATION
That the City Council adopt a Resolution authorizing a Communications Site License Agreement with Dish Wireless L.L.C. for the lease of a communications site on a portion of the property at Atkinson Park, 1000 North Railroad Avenue.
BACKGROUND:
The wireless carrier DISH Wireless L.L.C. ("DISH") requires additional coverage within Santa Maria. To meet this need, DISH requested to install and maintain a wireless communications facility on the City -owned property at Atkinson Park, 1000 North Railroad Avenue, Santa Maria. The site will consist of approximately 100 square feet to facilitate the operation of an 88 -foot -tall monopole communications tower. The pole will replace an existing sports field light pole at the site.
DISCUSSION:
Since 2021, City of Santa Maria ("City") staff and DISH representatives have been negotiating the terms of a Communications Site License Agreement ("Agreement") (Attachment "A") for Atkinson Park. A summary of the proposed Agreement follows:
Initial License Fee
Initial Term
Renewal Terms
Annual Escalator
Development Cost
Operational Cost
$36,600 per annum
Five years
Four successive five-year terms
Three percent
DISH is required to pay all permit fees related to site development and construction.
DISH is required to pay for all operational costs, including utilities, maintenance, repairs, improvements, equipment, operations, and uses incidental thereto.
Due Diligence Clause DISH is required to pay 20 percent of an initial annual license fee. After one year, DISH will be required to pay an 1 Collocation Clause
F additional 20 percent of the initial annual license fee if the building permit has not yet been obtained.
DISH is required to pay a minimum Collocation Fee of no less than $12,500 per annum per sublicense, upon consent by the City for the collocation.
Alternatives
1. The City Council can elect not to enter into the Agreement; or
2. The City Council can direct City staff to reopen negotiations with DISH; however, the terms of the Agreement are in line with industry standards and even go further to ensure revenues in exchange for reserved use of the property until such time as construction can commence (i.e., the Due Diligence clause).
Environmental Notice
The project qualifies for a Class 3 Categorical Exemption pursuant to Section 15303 (New construction or conversion of small structures) of the California Environmental Quality Act (CEQA) State Guidelines.
Fiscal Considerations
Annual rent revenue will be attributed to the General Fund with a priority placed on expenditures for improvements to Atkinson Park. There will also be a one-time signing bonus of $10,000 and a one-time payment of $5,000 as reimbursement of expenses incurred by the Utilities Department for negotiation and preparation of the Agreement.
Impact to the Community
This will be the second communications tower at Atkinson Park; the other tower is operated by T -Mobile under a separate license agreement with the City. Both agreements prohibit the operation of the site in a manner that causes interference with the use or enjoyment of the City's property.
Impact to the City
The Community Development Department Planning Division determined the project meets applicable land use requirements and issued Conditional Use Permit U2022-010 on February 15, 2023. The Building Division will review construction plans after submittal to ensure they meet all applicable building codes.
This project was approved by the Recreation and Parks Department. In addition, DISH will be required to coordinate construction and ongoing maintenance of the site with the Recreation and Parks Department.
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2 MICHELLE RUIZ , P.E., MPA
Business Program Leader II
Director of Utilities
Attachment
Attachment "A" — Communications Site License Agreement
3 RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MARIA,
CALIFORNIA, AUTHORIZING A COMMUNICATIONS SITE LICENSE
AGREEMENT WITH DISH WIRELESS L.L.C. FOR THE LEASE
OF A COMMUNICATIONS SITE ON A PORTION OF PROPERTY AT
ATKINSON PARK, 1000 NORTH RAILROAD AVENUE
WHEREAS, DISH Wireless L.L.C. requested to install and maintain a wireless communications facility on approximately 100 square feet of land at Atkinson Park located at 1000 North Railroad Avenue to facilitate the operation of an 88 -foot -tall monopole communications tower; and
WHEREAS, the City of Santa Maria Planning Commission approved Conditional Use Permit U2022-010 at its regular meeting of February 15, 2023 for the replacement of an existing sports -field light pole with the monopole communications tower; and WHEREAS, the City of Santa Maria Utilities Department and DISH Wireless L.L.C. negotiated the terms of a Communications Site License Agreement related to the proposed communications facility, and that agreement will remain in effect for an initial term of five years, with four successive five year renewal terms commencing automatically unless terminated as provided for within the agreement.
NOW, THEREFORE, IT IS HEREBY RESOLVED by the City Council of the City of Santa Maria, California, as follows:
1. Authorize and direct the City Manager, or designee, to enter into a Communications Site License Agreement with DISH Wireless L.L.C. for the lease of a communications site on a portion of the property at Atkinson Park, incorporated herein by reference; and
2. Authorize and direct the City Manager, or designee, to enter into extensions and modifications consistent with the terms of the agreement as determined to be in the best interest of the City of Santa Maria; and
3. Assign priority for the General Fund expenditure of revenue derived from this agreement to improvements and/or services at Atkinson Park and its immediate vicinity; and
4. Authorize the Chief Deputy City Clerk to make minor changes herein to address clerical errors, so long as substantial conformance of the intent of this document is maintained. In doing so, the Chief Deputy City Clerk shall consult with the City Manager and City Attorney concerning any changes deemed necessary. /11
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Santa Maria held on the 2nd day of May 2023.
Mayor
ATTEST:
Chief Deputy City Clerk
APPRO P•: -.TO FORM.
�f—
City Attorney
C y Manager
COMMUNICATIONS SITE
LICENSE AGREEMENT
BETWEEN
CITY OF SANTA MARIA
AND
DISH WIRELESS L.L.C.
FOR A PORTION OF PROPERTY AT
1000 NORTH RAILROAD AVENUE,
SANTA MARIA, CALIFORNIA 93454,
APN 119-010-003
21466.00021\33936571.2
Attachment "A"
COMMUNICATIONS SITE LICENSE AGREEMENT
This Communications Site License Agreement ("License") is made as of the latter of the signature dates below ("Effective Date"), by and between the City of Santa Maria, California, a California Municipal Corporation, charter city, and political subdivision of the State of California ("Licensor"), with its principal place of business at 110 East Cook Street, Santa Maria, California 93454, and DISH Wireless L.L.C., a Colorado limited liability company ("Licensee"), with its principal place of business at 9601 South Meridian Boulevard, Englewood, Colorado 80112. Licensor and Licensee are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
1. RESERVED.
2. PREMISES & GRANT OF AUTHORITY.
2.1 Licensor is the record owner of a piece of real property generally located at 1000 North Railroad Avenue, Santa Maria, County of Santa Barbara, California, Assessor's Parcel Number 119-010-003, legally described in Exhibit "A" ("Property") attached hereto and made a part hereof. Licensor hereby licenses to Licensee a portion of the Property being described as a ten -foot (10') by ten -foot (10) parcel containing approximately one hundred (100) square feet (the "Land Space"), together with the nonexclusive right for ingress and egress along those designated rights of way to and from public rights of way to the Land Space (the "Rights of Way"). The Land Space and Rights of Way (hereinafter collectively referred to as the "Premises") are hereby specifically licensed as depicted in Exhibit "B" attached hereto and made a part hereof, and no permission granted apart from Exhibit "B" is either expressed or implied.
2.2 Subject to the terms and conditions of this License, Licensee is authorized to use the Premises only for the purpose of constructing, maintaining, repairing, and operating communications facilities ("Facilities") as specifically described and depicted in Exhibit "B," and uses incidental thereto (collectively, "Licensee's Permitted Use"). All Facilities shall be at Licensee's expense. Notwithstanding this Premises & Grant of Authority Section, subject to the Interference Section below, Licensee shall have the right to replace, repair, add, or otherwise modify its Facilities or any portion thereof and the frequencies over which any Facilities operate during the Initial Term and each Renewal Term, defined below. Notwithstanding Licensor's approval of Licensee's use of the Premises or the Property, nothing in this License may be deemed to grant, convey, create. or vest in Licensee a real property interest in land, including any fee, leasehold interest, or easement.
2.2.1 All Parties acknowledge that Licensor, in executing this License, is acting only in its capacity as the owner of the Property and Premises, and not in any regulatory capacity. Licensee shall not consider this License as approval of any applicable permits, licenses or other regulatory or governmental approvals required for the construction or operation of the Facilities.
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2.2.2 All Parties further acknowledge that Licensee shall install and operate the Facilities in a good and competent manner and that such installation and operations are at all times in compliance with applicable federal, state, and local laws.
3. TERM.
3.1 The initial term of this License shall be five (5) years (the "Initial Term"), commencing upon the date Licensee is granted a building permit by the governmental agency charged with issuing such permits, or the date of full execution of the License by the Parties, whichever is later. In the event the date at which Licensee is granted a building permit or the date of execution of the License, whichever is applicable, falls between the first (1st) and fifteenth (15th) of the month, the License shall commence on the first (1st) of that month, and if such date falls between the sixteenth (16th) and thirty- first (31st) of the month, then the License shall commence on the first (1st) day of the following month (either the "Commencement Date"). Notwithstanding anything to the contrary in License Fee Section below, Licensor and Licensee acknowledge and agree that initial rental payment(s) shall not actually be sent by Licensee until thirty (30) days after the Commencement Date. The Initial Term of this License shall expire at Midnight on the day before the fifth (5th) anniversary of the Commencement Date.
3.2 Provided that Licensee is not in default of this License beyond applicable notice and cure periods and has not provided written notice to Licensor outlining Licensee's intention to terminate this License more than one hundred and twenty (120) days prior to the expiration of the current term, this License shall automatically be extended for four (4) additional, five (5) year terms (each being a "Renewal Term"), subject to all terms and conditions of this License.
3.3 If Licensee shall remain in possession of the Premises at the expiration or earlier termination of this License, such possession shall be deemed a holdover use under the same terms and conditions of this License, except that the License Fee shall be one hundred twenty-five (125%) percent of the License Fee in effect at the expiration or earlier termination of this License. Nothing contained herein shall grant Licensee the right to holdover after the term of this License has expired and notwithstanding the payment of license fees during the holdover period, Licensor shall have the right to require Licensee to vacate the Property and Premises at any time upon thirty (30) days written notice.
4. LICENSE FEE.
4.1 On the Commencement Date, License Fee payments shall commence on a monthly basis at a total annual rate of Thirty -Six Thousand Six Hundred Dollars and Zero Cents ($36,600.00) (the "License Fee").
4.1.1 The License Fee shall automatically increase on the anniversary of each Commencement Date, by an amount equal to three (3) percent per annum above the amount of the License Fee in effect immediately prior to such increase.
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4.1.2 The License Fee shall be payable in advance without offset or deduction to the "City of Santa Maria" at Licensor's address specified in the Notices Section below or to any other person or firm as Licensor may, from time to time, designate in writing at least sixty (60) days in advance of any License Fee payment date.
4.1.3 If, at any time, Licensee fails to make timely payment, Licensee shall pay a late penalty of five (5) percent or the maximum allowable by law, whichever is less, of the amount owed until paid in full. These rights are in addition to all rights of Licensor to terminate this License if Licensee fails to cure such breach beyond the applicable notice and cure periods provided herein.
4.1.4 All sums payable by Licensee under this License, whether or not stated to be License Fees or additional License Fees, shall be collectible by Licensor as License Fees, and upon default in payment thereof, Licensor shall have the same rights and remedies as for failure to pay License Fees, without prejudice to any other right or remedy available therefore.
4.2 Licensee shall have the right to sublicense the Premises as provided for in Assignment Section below and the Collocation Section below.
4.3 Within forty-five (45) days of the Effective Date, Licensee will pay to Licensor as additional rent a one-time payment of Five Thousand Dollars and Zero Cents ($5,000.00) as reimbursement for legal fees incurred by Licensor in conjunction with the negotiation and preparation of this License.
4.4 Within forty-five (45) days of the Effective Date, Licensee will pay to Licensor as additional rent a one-time payment of Ten Thousand Dollars and Zero Cents ($10,000.00) as a signing bonus in conjunction with the preparation of this License.
4.5 Licensee shall have the right to use a direct deposit system with regard to License Fee payments. Licensor agrees to cooperate with Licensee in providing requisite information to Licensee for such direct deposit. The implementation of the direct deposit system shall be at Licensee's sole expense.
5. ASSIGNMENT.
Upon prior written notice to Licensor, this License may be sold, assigned or transferred by the Licensee without any approval or consent of the Licensor to the Licensee's principal subsidiaries of its principal or to any entity which acquires all or substantially all of Licensee's assets in the market defined by the Federal Communications Commission ("FCC") in which the Property is located by reason of a merger, acquisition, or other business reorganization. As to other parties, this License may not be sold, assigned, or transferred without the express prior written consent of Licensor, in Licensor's sole and exclusive discretion. Licensee shall reimburse Licensor for all its reasonable out-of-pocket attorneys' fees and costs of reviewing such requests for consent. Subletting and collocation shall be governed by Collocation Section of this License.
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6. DUE DILIGENCE GUARANTEE.
6.1 Notwithstanding the provisions for a License Fee and the designation of the Commencement Date above, immediately upon the execution of this License, Licensee shall pay to Licensor the total sum of twenty (20) percent of the annual License Fee (the "Due Diligence Fee") for the twelve (12) month period commencing upon the Effective Date (the "Due Diligence Period") as a guarantee of Licensee's due diligence in processing and pursuing the building permit necessary for the construction of the Facilities.
6.2 If the Commencement Date has not yet accrued upon the expiration of the Due Diligence Period, Licensee may extend the initial Due Diligence Period for an additional twelve (12) months (the "Extended Due Diligence Period") with the payment of a second (2"d) Due Diligence Fee. Said Extended Due Diligence Period shall expire at midnight twelve (12) months from the date of payment of the second (2"d) Due Diligence Fee.
6.3 If the Due Diligence Period or the Extended Due Diligence Period, as applicable, expires for Licensee's failure to effectuate the Commencement Date or Licensee's failure to option the Extended Due Diligence Period, this License shall expire, and be null and void. Licensor shall retain any and all License Fees, Due Diligence Fees, or any other sums of money paid to Licensor by Licensee up until the date of expiration.
6.4 If Licensee effectuates the Commencement Date prior to the expiration of the Due Diligence Period or the Extended Due Diligence Period, as applicable, Licensor shall retain Licensee's Due Diligence Fee(s), which shall be applied to Licensee's License Fee obligation as a credit. No interest shall accrue on Licensee's Due Diligence Fee(s).
7. INTERFERENCE.
7.1 Licensee acknowledges that avoiding radio interference with Licensor's operations is a material condition of this License. Licensee acknowledges that avoiding measurable interference with existing equipment of Licensee is a material condition of this License. Prior to adding any equipment or changing any operation which could result in interference to Licensor's operations, Licensee agrees to conduct tests and prepare a report acceptable to Licensor describing its proposed equipment, type of frequency, operational effects, and likely future scenarios. The Licensee agrees to make reasonable changes to its operations in order to avoid interference.
7.2 Licensee also acknowledges and understands that there may be communications facilities on Property belonging to one or more third parties (referred to as the "Prior User(s)") that has entered into an agreement(s) (the "Prior Use Agreement(s)") with Licensor, pursuant to which the Prior User(s) has(ve) been permitted to install and operate communications equipment on the Property. Where applicable, Licensee represents and warrants that prior to the execution of this License, Licensee has determined that the Prior Users present no material interference with Licensee's intended use within the Premises.
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7.3 Licensee shall operate its Facilities in a manner that will not cause interference with the use or enjoyment of the Property by Licensor and all Prior Users in and/or on the Property as of the Effective Date, including but not limited to, the Master Antenna Television (MATV) systems; heating, ventilation, and air conditioning (HVAC) systems; roof; electronically controlled elevator system; computers; telephone systems; or any other system serving the Property and/or its occupants. If Licensee's Facilities cause such harmful interference, Licensee will immediately take all steps necessary to correct and eliminate the interference, including but not limited to, at Licensee's option, powering down such equipment and later powering up such equipment for intermittent testing. If such interference cannot be corrected or powered down within two (2) days after Licensee is advised of such interference, Licensor may require that Licensee cease (or cause the cessation of) operation of the interfering equipment until such interference can be so corrected at which time the operation of such equipment may resume. Licensor hereby acknowledges that Licensee's Permitted Use of the Premises shall not constitute an impermissible interference. Licensee acknowledges that Licensor assumes no risk or liability for any interference with Licensee's use of the Property which results from the operation of communications equipment on the Property by the Prior User(s) under the Prior Use Agreement(s) and agrees that Licensor shall be held harmless from claims due to any such interference, pursuant to the indemnification terms set forth in this License.
7.4 All operations of Licensee shall be lawful and in compliance with all applicable Governmental Requirements (as hereafter defined), rules and regulations including, but not limited to those of the FCC and the Federal Aviation Administration (FAA). "Governmental Requirements" shall mean all applicable requirements under any applicable federal, state, or local statutes, rules, regulations, ordinances, or other requirements of any duly constituted public authority having jurisdiction over the Property (including, without limitation, the Premises). Should Licensee be notified by any applicable government agency of any violation pertaining to the Premises, it must share said notice with Licensor within ten (10) business days after Licensee's receipt of such notice and Licensee shall provide Licensor nonproprietary documentation from the government agency that Licensee has cured the violation. Licensee shall indemnify Licensor and hold it harmless from all expenses, costs, damages, loss, claims, or other expenses and liabilities arising from any measurable interference to the extent caused by Licensee's failure to comply with FCC or FAA rules and regulations that is not curtailed within thirty (30) days after Licensee receives written notice of such interference from Licensor. Licensee shall be responsible for all costs associated with any tests reasonably deemed necessary to resolve interference to the extent the same is caused by Licensee's Facilities. If such interference caused by Licensee's failure to comply with FCC or FAA rules and regulations has not been corrected within thirty (30) days after Licensee receives notice thereof from Licensor, Licensor may require Licensee to remove the specific items from the Facilities causing such interference.
7.5 Licensor reserves the right to license other portions of the Property to other parties during the term of this License. Accordingly, Licensor agrees that any other person or entity who may install equipment subsequent to the Commencement Date in and/or on the Property shall be permitted to install only such communications equipment that is of the type and frequency that will not cause any interference to Licensee or persons or
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entities claiming through or under Licensee. In the event any such person or entity's equipment causes such interference, Licensor will cause the interfering party to take all steps necessary to correct and eliminate the interference or such interfering party will be required to cease operations until such interference is removed. To the extent that Licensee's operations are not within the parameters of its FCC license, this protection from co -located interference will not be applicable, but it shall be applicable with respect to those operations, or portions thereof, falling within the FCC license parameters. In the event that Licensee commences using the Premises in a manner as to which Licensee is not presently licensed by the FCC, but with respect to which Licensee hereafter obtains necessary FCC licensure, Licensee's right to conduct such particular new use shall be subordinate to the then existing use of the Property by Licensor, other licensees or occupants thereof existing on or before the date on which Licensee commences such new use. If any such subsequent users cannot correct such harmful interference within twenty (20) business days of Licensee's written notification thereof to Licensor, Licensee may terminate this License upon sixty (60) days written notice to Licensor and obtain a refund of prepaid unused amounts of the License Fee, or seek injunctive or other legal relief against/from such subsequent third party users. The refund shall be Licensee's sole and exclusive remedy and recovery as against Licensor for any interference, and Licensee hereby waives any other rights or remedies it may have at law or in equity against Licensor related thereto. The parties recognize and agree that it is the intention of this Interference Section that Licensor not become embroiled in any disputes or proceedings between Licensee and any other users of the Property, and/or expend funds as a result thereof; therefore, Licensee agrees to indemnify, defend, and hold harmless the Licensor against any claim related to or arising from any disputes or proceedings between Licensee and any other users of the Property.
8. IMPROVEMENTS & UTILITIES.
8.1 Prior to installing any new Facilities, or modifying any portion of the existing Facilities ("Additional Facilities") in or on the Premises, Licensee shall submit detailed engineering plans and specifications of the Additional Facilities to Licensor for Licensor's written approval, which approval shall not be unreasonably withheld, delayed or conditioned. Licensor's review of Licensee's plans shall include a review of the appearance of the Additional Facilities and shall be at no cost to the Licensor. The Additional Facilities to be installed must be in compliance with all applicable federal, state, and local laws, including but not limited to applicable local zoning requirements, and will adhere to all applicable technical standards set forth in this License. Licensor's approval of any installation is not a representation that such installation of the Additional Facilities is in compliance with all applicable governmental laws, ordinances, rules and regulations or that such Additional Facilities will not cause interference with other communications systems, if any, then in operation on the Property. Licensee hereby confirms and agrees that the Additional Facilities shall be installed and operated solely within the Premises, unless otherwise agreed to in writing by the Parties. Notwithstanding anything to the contrary herein, in no event will Licensor's approval be required in order for Licensee to perform maintenance, repairs, or like -for -like replacements of any portion of the Facilities, provided such like -for -like replacements consist of swapping out of equipment and/or antennas of the same size, dimensions, shape, and color, and/or "like for like"
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replacement of equipment within an existing equipment room or enclosure without expansion of the room or enclosure.
8.2 All work by Licensee shall be performed in compliance with applicable laws and ordinances. During Licensee's construction of its Facilities, Licensee shall have, and Licensor hereby grants to Licensee, a temporary license to use portions of the Property reasonably necessary for the storage of materials and staging of construction, provided such additional space does not unreasonably impede, interfere, or inhibit Licensor's use of the Property, in Licensor's sole and complete discretion. Licensee and its contractors and subcontractors shall be solely responsible for the transportation, storage and safekeeping of materials and equipment used in the performance of any work on behalf of Licensee, for the removal of waste and debris resulting there from on a daily basis, and for any damage to the extent caused by them to any installations or work performed by Licensee's contractors and subcontractors. Upon completion of construction, Licensee shall remove any items stored or placed by Licensee in such temporary license area, and return such area to Licensor in the condition existing prior to construction, reasonable wear and tear excepted.
8.3 Licensee is not authorized to contract for or on behalf of Licensor for work on, or the furnishing of materials to the Premises or any other part of the Property, and Licensee shall discharge of record by payment, bond or otherwise, within fifteen (15) days subsequent to the date of Licensee's receipt of written notice thereof from Licensor, any mechanic's, laborer's or similar lien filed against the Premises or the Property for work or materials claimed to have been furnished at the direction of Licensee or Licensee's agents. The Facilities shall remain the exclusive property of Licensee during the term of this License, and Licensee shall have the right to remove all or any portion of the Facilities at any time during the term of this License or following the term of this License as hereinafter provided.
8.4 Licensee will notify Licensor prior to commencing any work on the Property.
Prior to commencing any installation, Licensee, upon Licensor's request, will at its own cost and expense deliver to Licensor a certificate of insurance confirming that commercial general liability insurance as required by this License, has been obtained and is in place.
Licensee's contractor will include Licensor and Licensor's, its officials, officers, agents, and employees as additional insured under contractor's general and automobile liability insurance policies. Prior to Licensee's commencement of the initial installation of the Facilities, Licensee shall provide Licensor with copies of any applicable licenses and permits from all applicable governmental or regulatory entities ("Governmental Approvals") obtained by Licensee with respect to this License.
8.5 All installation and other work to be performed by Licensee hereunder will be done in such a manner so as not to interfere materially with, delay, or impose any material additional expense upon Licensor in maintaining, operating or using the Property.
In no event will Licensor be required to consent to any installation or other work by Licensee which would physically affect any part of the Property outside the Premises (other than with respect to the temporary construction license, which shall be subject to Licensee's duty to restore such area as provided herein). Licensee shall repair any
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damage to the extent caused by Licensee to Licensor's Property, excepting reasonable wear and tear, and casualty damage.
8.6 Within ninety (90) days of any termination or expiration of this License, Licensee shall remove all of its Facilities from the Premises and Property. In performing such removal, Licensee shall restore the Premises and any personal property and fixtures thereon to as good a condition as they were in prior to the installation or placement of the Facilities, excepting reasonable wear and tear. If Licensee fails to remove all of its Facilities within ninety (90) days after expiration or earlier termination of this License, Licensor may remove and dispose of the Facilities, and Licensee shall reimburse Licensor for the reasonable costs actually incurred for such removal and restoration of the Premises, or Licensor may deem the Facilities abandoned, whereupon the Facilities shall become Licensor's sole personal property. Licensee shall, at Licensee's expense, keep, and maintain the Premises in commercially reasonable condition and repair during the term of this License. Licensee agrees to maintain its Facilities in proper operating condition and within industry accepted safety standards. All installations and operations of the Facilities by Licensee shall comply in all respects with all applicable rules and regulations of the FCC and all applicable federal, state, city, county, and local codes and regulations. Licensor assumes no responsibility for the licensing, operation or maintenance of the Facilities. Licensee has the responsibility of carrying out all of the terms of its FCC license.
8.7 Licensee shall have the right, at Licensee's expense, to install or improve utilities within the Property and to install or improve utilities on the Premises. All utility routes not already depicted in the site plans attached as Exhibit "B" hereto must be approved by Licensor prior to construction, which approval shall not be unreasonably withheld, conditioned, or delayed. Licensee, at Licensee's sole expense agrees to have a separate meter(s) installed for Licensee's utility service consumption, whereupon, Licensee shall pay the applicable service utility directly for its usage.
9. ACCESS.
9.1 Licensee and its authorized personnel, as defined below, shall be entitled to access to the Premises for ingress and egress on foot or motor vehicle, seven (7) days a week, twenty-four (24) hours a day, provided Licensee first calls or emails Licensor's representative at (805) 925-0951 ext. 2260 or [email protected] at least forty-eight (48) hours in advance of any proposed entry by Licensee to allow a representative of Licensor to be present during any such entry, provided however, that in the event of an emergency, Licensee shall provide Licensor with prior telephonic notice if such notice is reasonably practicable in the situation, or if prior notice is not reasonably practicable, Licensee shall provide telephonic notice as soon as practicable after Licensee's access to the Premises. For purposes hereof, authorized personnel shall mean only authorized employees, engineers, technicians, or properly authorized contractors of Licensee or persons under their direct supervision and carrying appropriate identification credentials evidencing said authority. All access to the Premises by Licensee shall be subject to compliance with reasonable rules and regulations (which are not inconsistent with the terms and conditions of this License) promulgated by Licensor
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from time to time in effect at the Property, of which Licensor shall inform Licensee in writing.
10. EVENTS OF DEFAULT.
10.1 It shall be an Event of Default if any one or more of the following events shall occur:
10.1.1 Licensee fails to make any payment when due of any License Fees or other sum of money specified hereunder to be paid by Licensee and Licensee does not remedy such breach within twenty (20) days after Licensee's receipt of written notice thereof from Licensor; or
10.1.2 Licensee fails to perform any other of the terms, conditions, or covenants contained in this License to be performed or observed by Licensee other than that specified in the immediate preceding subsection above, and Licensee does not remedy such breach within thirty (30) days after Licensee's receipt of written notice thereof from Licensor; provided Licensee shall have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and Licensee commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion.
10.1.3 Licensor shall be in breach, 1) if having been put on notice in writing by Licensee for failure to perform a term, or comply with a condition or covenant outlined in the License, and 2) Licensor has not cured said claim within sixty (60) days.
Notwithstanding the above, all Parties agree that Licensor shall have more than sixty (60) days to cure any default which by its nature cannot be cured within sixty (60) days of the written notice from Licensee. In order to claim this extra time, Licensor must commence the cure within the sixty (60) day period and thereafter continuously and diligently pursue the cure to completion.
10.1.4 Upon the occurrence of an Event of Default, the non -defaulting Party may at its option (but without obligation to do so), perform the defaulting Party's duty or obligation on the defaulting Party's behalf, including but not limited to the obtaining of reasonably required insurance policies. The costs and expenses of any such performance by the non -defaulting Party shall be due and payable by the defaulting Party upon invoice therefor. If an Event of Default is not cured within the applicable cure period by the defaulting Party, without limiting the non -defaulting Party in the exercise of any right or remedy which the non -defaulting Party may have by reason of such default, the non - defaulting Party may terminate this License and/or pursue any remedy now or hereafter available to the non -defaulting Party under the laws or judicial decisions of the state of California (the state in which the Premises are located); provided, however, both Parties shall use reasonable efforts to mitigate their damages in connection with a default by the other Party.
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11. TERMINATION BY LICENSEE.
11.1 Following the Commencement Date, and except as otherwise provided herein, provided that no Event of Default by Licensee exists at the time of issuance of Licensee's written notice, this License may be terminated by Licensee, subject to the requirements of Improvements & Utilities Section above, under the following circumstances:
11.1.1 Upon sixty (60) days prior written notice if Licensee can document that soil boring tests reveal that the site cannot meet industry standards;
11.1.2 Upon sixty (60) days prior written notice if any necessary application for any Governmental Approvals that are required by any federal, state or local authorities (including the FCC) should be finally rejected or are canceled, expired, lapsed, or otherwise withdrawn or terminated by governmental authority (due to no fault of Licensee):
11.1.3 After the Initial Term, upon sixty (60) days prior written notice and without penalty or further liability, if Licensee is unable to operate the Facilities in accordance with Licensee's Permitted Use on the Premises as a result of measurable interference (other than on a temporary, non -recurring basis) resulting from the act of Licensor or any third party;
1 1.1.4 Upon Licensee terminating in accordance with this Termination By Licensee Section, Licensee shall surrender and vacate the Premises and deliver possession thereof to Licensor within ninety (90) days of the termination date in the condition required under this License for surrender of the Premises.
12. CASUALTY AND CONDEMNATION.
12.1 If at any time during the term of this License, through no fault of the Licensee, all or "substantially all" (meaning the remaining portion thereof shall not be of sufficient size or condition to permit the continuation of Licensee's Permitted Use in a commercially reasonable manner) of the Facilities upon the Premises shall be damaged and/or destroyed by fire or other casualty, then Licensee may terminate this License by providing sixty (60) days written notice to Licensor, which termination shall be effective as of the date of such damage and/or destruction, and whereupon Licensee shall be entitled to collect all insurance proceeds payable on account thereof and the reimbursement of any prepaid License Fee, to be apportioned as of the termination date. Licensee must nevertheless surrender and vacate the Premises and deliver possession thereof to Licensor within ninety (90) days of the termination date in the condition required under this License for surrender of the Premises.
12.2 If at any time during the term of this License all or "substantially all" (as described in the immediate preceding subsection above) of the Premises or the improvements located on the Property shall be taken in the exercise of the power of eminent domain by any governmental or other authority, or by deed in lieu of condemnation, then Licensee may terminate this License by providing written notice to
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Licensor, which termination shall be effective as of the date of the vesting of title in such taking and any prepaid License Fee shall be apportioned as of said date and reimbursed to Licensee. Licensor and Licensee shall each be entitled to pursue their own separate awards with respect to such taking, but in any event, Licensee's award shall be limited to lost improvements investment, relocation, and loss of business. In the event of any taking of less than all or substantially all of the Premises, if the Premises are still fully operational, this License shall continue.
13. TAXES.
Licensor hereby provides notice pursuant to California Revenue and Taxation Code Section 107.6, and Licensee acknowledges that this License may create a possessory interest and Licensee may be subject to property taxes levied on such interest, as described in California Revenue and Taxation Code Section 107. Licensee shall pay, when due, all real and personal property taxes, fees and assessments, assessed against the Premises and the Licensee's Facilities and shall reimburse Licensor for any increase in real property or possessory interest taxes levied against the Property as a result of the improvements constructed by Licensee on the Premises only for so long as this License has not expired of its own terms or is not terminated by either party. .
14. INSURANCE, RELEASE AND HOLD HARMLESS.
14.1 Licensee shall, at Licensee's sole cost and expense, procure and continue in force during the term of this License, including any Renewal Term:
14.1.1 Workers Compensation insurance at statutory limits, including Employee's Liability coverage with limits of one million dollars ($1,000,000) each accident; one million dollars ($1,000,000) by disease each -employee; and one million dollars ($1,000,000) by disease -policy limit;
14.1.2 Commercial General Liability insurance with limits of two million dollars ($2,000,000) per occurrence for bodily injury and property damage, and two million dollars ($2,000,000) general aggregate including contractual liability products/completed operations, and Explosion, Collapse, Underground (XCU) hazards;
14.1.3 Commercial Automobile Liability insurance with a combined single limit of one million dollars ($1,000,000) each accident for bodily injury and property damage covering all owned, non -owned, and hired vehicles;
14.1.4 "All-risk" property insurance insuring Licensee's Facilities and its appurtenant personal property for full replacement costs.
14.2 Any Subcontractor(s) hired by the Licensee shall maintain substantially the same insurance coverage as required of the Licensee. It is the responsibility of the Licensee to assure compliance with this provision. Santa Maria accepts no responsibility arising from the conduct, or lack of conduct, of the Subcontractor.
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14.2.1 Builders Risk coverage (if applicable) as follows:
(a) All Risk Builders Risk insurance, including collapse coverage, is required on a completed value form if the contract is for the construction of a structure or building.
(b) The Builders Risk policy must provide transit and off -premises coverage if the contract with the builder makes Licensee responsible for materials.
14.2.2 Comprehensive General Liability insurance form may be used in lieu of a Commercial General Liability insurance form. In this event, coverage must be written on an occurrence basis, at limits of two million dollars ($2,000,000) each -occurrence, combined single limit, and coverage must include products/completed operations, Explosion, Collapse, Underground (XCU) hazards, and contractual liability.
14.2.3 With reference to the foregoing insurance requirement, the insurance policies as follows shall:
(a) Include the City of Santa Maria as an additional insured as their interest may appear under this License with respect to all Liability policies. (b) All liability policies shall contain no cross liability exclusions or insured versus insured restrictions.
(c) All insurance policies, which include the City of Santa Maria as an additional insured, shall be primary coverage regardless of the application of other insurance as relates to Licensee operations.
(d) Required limits may be satisfied by any combination of primary and umbrella liability insurances.
(e) Insurance must be purchased from insurers that are rated at least A- by AM Best.
(f) Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent.
14.2.4 Upon receipt of notice from its insurer, Licensee will use its best efforts to provide the Licensor with thirty (30) days prior written notice of cancellation.
14.3 Licensee hereby releases Licensor and Licensor's property manager, if any, and their respective agents, employees, officers, directors, shareholders, and partners (collectively the "Releasees") from, and shall not hold Releasees liable for, any liability for personal injury, consequential damages, loss of income or damage to or loss of property or persons, or loss of use of any property, in or about the Premises from any cause whatsoever unless such damage, loss or injury directly results from the negligence or willful misconduct of the Releasees. Further, the Releasees shall not be liable to Licensee for any such damage or loss to the extent Licensee is compensated or would have been
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compensated by the insurance, which Licensee is obligated to maintain pursuant to this Insurance, Release & Hold Harmless Section.
14.4 Licensee agrees to indemnify, defend and hold the Releasees harmless from and against injury, loss, damage or liability (or any claims with respect to the foregoing), costs or expenses (including reasonable attorneys' fees and court costs) which may be imposed upon or incurred by or asserted against Releasees occurring during the term of this License, or after the expiration date hereof when Licensee may have been given access to or possession of all or any part of the Premises to the extent arising from:
14.4.1 Any work or act done in, on or about the Premises or any part thereof at the direction of Licensee, its agents, contractors, subcontractors, servants, employees, licensees or invitees, including but not limited to the installation, use, maintenance, repair or removal of the Facilities, except if such work or act is done or performed by Licensor or its agents or employees;
14.4.2 Any negligence or other wrongful act or omission on the part of Licensee or any of its agents, contractors, subcontractors, servants, employees, sub - licensees, licensees or invitees;
14.4.3 Any accident, injury or damage to any person or property occurring in, on or about the Premises to the extent caused by Licensee's negligence or willful misconduct, or any part thereof, unless caused by the negligence or willful misconduct of Licensor, its employees or agents; and
14.4.4 Any failure on the part of Licensee to perform or comply with any of the covenants, agreements. terms, provisions, conditions or limitations contained in this License on its part to be performed or complied with.
14.5 The Parties hereby waive and release any and all rights of action for negligence against the other which may hereafter arise on account of damage to the Premises or to the Property, resulting from any fire, or other casualty of the kind covered by standard fire insurance policies with extended coverage, regardless of whether or not, or in what amounts, such insurance is now or hereafter carried by the Parties, or either of them. These waivers and releases shall apply between the Parties and they shall also apply to any claims under or through any other policy required under this contract by either Party as a result of any asserted right of subrogation. All such policies of insurance obtained by either Party shall waive the insurer's right of subrogation against the other Party.
15. NOTICES.
All notices, requests, and demands hereunder will be given in writing by first class, certified or registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to be effective when properly sent and received, refused or returned undelivered. Notices, requests and demands will be addressed to the parties as follows:
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If to Licensor, to:
Director of Utilities
City of Santa Maria
2065 East Main Street
Santa Maria, CA 93454
If to Licensee, to:
DISH Wireless LLC.
Attn: Lease Administration
5701 South Santa Fe Boulevard
Littleton, CO 80120
Either party may change the address or persons to which notices are to be sent to it by giving thirty (30) days' prior written notice of such change to the other party in the manner provided herein.
16. QUIET ENJOYMENT, TITLE, AND AUTHORITY.
Licensor covenants and warrants that (i) it has full right, power and authority to execute this License and has the power to grant all rights hereunder; and (ii) it has good and marketable title to the Property free and clear of any liens, mortgages, restrictions or other encumbrances that will interfere with Licensee's Permitted Use of the Premises.
17. NO WARRANTY.
17.1 Licensee's right to use the premises, and the property is strictly on an "as is" basis with all faults. Licensor makes no representation or warranty of any kind as to the present or future condition of or suitability of the property, or the premises for licensee's use and disclaims any and all warranties express or implied with respect to the physical, structural, or environmental condition of the property, and premises and the merchantability or fitness for a particular purpose. Licensee is solely responsible for investigation and determination of the condition and suitability of the property, and premises for licensee's intended use.
18. HAZARDOUS SUBSTANCES.
18.1 For purposes of this License, the term "Hazardous Substances" means: (a) any substance, products, waste, or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 United States Code Section 9601 et seq.; the Resources Conservation and Recovery Act, 42 United States Code Section 6901 et seq.; the Hazardous Materials Transportation Conservation and Recovery Act, 42 United States Code Section 1801 et seq.; the Clean Water Act, 33 United States Code Section 1251 et seq.; the Toxic Substances Control Act, 15 United States Code Section 2601 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the Hazardous Substance Account Act, Health and Safety Code Section 25330 et seq.; the California Safe Drinking Water and Toxic
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Enforcement Act, Health and Safety Code Section 25249.5 et seq.; California Health and Safety Code Section 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Section 25170.1 et seq.; California Health and Safety Code Section 25501 et seq. (Hazardous Materials Release Response Plans and Inventory); or the California Porter -Cologne Water Quality Control Act, Water Code Section 13000 et seq., all as amended; or any other federal, state, or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance, now or at any time hereinafter in effect; (b) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory based on negligence, trespass, intentional tort, nuisance or strict liability or under any reported decisions of a state or federal court; (c) petroleum or crude oil, other than petroleum and petroleum products which are contained within regularly operated motor vehicles; and (d) asbestos.
18.2 Except as otherwise specifically permitted under the terms of this License.
Licensee shall not use, create, generate, store, deposit, dispose of or allow any Hazardous Substances on, under, about or within the Property or Premises in violation of any federal, state, or local law, rule, regulation, order, decree or other requirement listed in this Hazardous Substances Section. Batteries for emergency power and fuel for temporary generators during power outages may only be used or stored on -site with the prior written approval of Licensor. Onsite use, but not storage, of ordinary paints, solvents and similar substances commonly used in small quantities and necessary for maintenance of Licensee's Communications Facility are excepted from the preceding prohibition of use by Licensee of Hazardous Substances on the Premises and the Property, so long as Licensee complies with all applicable federal, state and local laws rules and regulations governing the use of such items.
18.3 Unless listed in Exhibit B, no underground or above ground storage tanks shall be installed on Premises.
18.4 Licensor or its officers, employees, contractors, or agents shall at all times have the right to go upon and visually inspect the Premises and the operations conducted thereon to assure compliance with the requirements herein stated. This inspection may also include taking samples for chemical analysis of substances and materials present and/or testing soils on the Premises and taking photographs. Except in case of emergency, Licensor will not take samples or test soils on the Premises without providing Licensee with reasonable notice and the opportunity to have a representative present.
18.5 Licensee shall, within forty-eight (48) hours of the discovery by Licensee of the presence of, or believed presence of, a Hazardous Substance as defined herein, give written notice to Licensor in the event that Licensee knows or has reasonable cause to believe that any release of Hazardous Substance has come or will come to be located on, under, about or within the Premises. The failure to disclose in a timely manner the release of a Hazardous Substance by Licensee, including but not limited to, an amount which is required to be reported to a state or local agency pursuant to law (e.g.,
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California's Hazardous Materials Storage and Emergency Response Act, Health and Safety Code Section 25550 et seq.) shall be grounds for termination of this License by Licensor in addition to actual damages and other remedies provided by law. Licensee shall immediately clean up and completely remove all Hazardous Substances placed by Licensee on, under, about or within the Premises or the Property, in a manner that is in all respects safe and in accordance with all applicable laws, rules and regulations.
18.6 In the event Hazardous Substances are discovered, Licensee shall disclose to Licensor the specific information regarding Licensee's discovery of any Hazardous Substances placed on, under, about or within the Premises or the Property by Licensee, and provide written documentation of its safe and legal disposal.
18.7 Breach of any of these covenants, terms, and conditions, and Licensee's failure to cure within thirty (30) days of Licensee's receipt of written notice from Licensor, shall give Licensor the authority to either immediately terminate this License or to shut down Licensee's operations thereon, at the sole discretion of Licensor. In either case, Licensee will continue to be liable under this License to remove and mitigate all Hazardous Substances placed by Licensee on, under, about or within the Premises or the Property. Licensee shall be responsible for, and bear the entire cost of removal and disposal of, all Hazardous Substances introduced to the Premises or the Property by Licensee during Licensee's period of use and possession of the Premises. Upon termination of this License, Licensee shall, in accordance with all laws, remove from the Premises any equipment or improvements placed on the Premises by Licensee that may be contaminated by Hazardous Substances.
18.8 The terms of this Hazardous Substances Section shall survive the expiration or earlier termination of this License.
19. COLLOCATION.
19.1 Licensee may sublicense the Premises to any qualified third -party communications provider consistent with this License and subject to the advance written consent of Licensor, which consent may be withheld in the Licensor's reasonable discretion. Prior to doing so, Licensee shall notify Licensor. Upon execution of such sublicense, Licensee shall pay Licensor as additional rent fifty percent (50%) of all revenue received from such sublicensee ("Collocation Fee"). The Collocation Fee shall be paid in the same manner and subject to the same requirements and conditions as the License Fee. However, in no event shall the Collocation Fee be less than Twelve thousand five hundred dollars ($12,500) per annum per sublicensee. This minimum Collocation Fee amount shall be adjusted through the term of this License in the same manner as the License Fee. Moreover, in the event that a proposed sublicensee requires additional ground space outside of the Premises, it shall enter into a separate license with Licensor to do so or this License may be amended to provide for such additional space.
Licensor may grant or deny such requests in its sole discretion, including conditioning execution of such new or amended agreements on the payment of additional rent.
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19.2 Any attempted or unauthorized assignment or sub -license shall be void and shall be cause for immediate termination of this License by Licensor. The acceptance of License Fees by Licensor from any person other than Licensee or an authorized assignee shall not be deemed to be a waiver by Licensor of any provision hereof. Consent to one assignment shall not be deemed consent to any subsequent assignment.
19.3 Requests for consent to assignments shall be submitted to Licensor to the address set forth in the above Notices Section.
20. SUCCESSORS AND ASSIGNS.
This License, and all of the provisions hereof, shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns. No customer, other person or entity other than the parties shall be deemed to be a third -party beneficiary hereof, and nothing in this License, either express or implied, is intended to confer upon any customer or other person or entity, other than the parties and their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this License.
21. ENTIRE LICENSE AGREEMENT.
This License contains the entire understanding between the Licensor and Licensee with respect to its subject matter, and supersedes all prior agreements or licenses, oral or written, and all prior or contemporaneous discussions or negotiations between the Parties, and cannot be amended except in writing signed by both Parties.
22. INDEPENDENT CONTRACTORS.
Licensee's contractors, agents and representatives are independent contractors of Licensee, and are not employees or independent contractors of Licensor while on the Property, or while engaged in any work on the Property, including the construction, installation, maintenance or operation of the Facilities.
23. MISCELLANEOUS.
23.1 The prevailing Party in any litigation arising hereunder shall be entitled to recovery of its reasonable attorneys' fees and court costs. With respect to any provision in this License providing for payment or indemnification of attorneys' fees, such fees shall be deemed to include reasonable fees incurred through any applicable appeal process and shall include reasonable fees attributable to legal services provided by any in-house counsel and staff to the prevailing or indemnified Party. For purposes hereof, the services of in-house attorneys and their staff shall be valued at reasonable rates for independent counsel prevailing in the metropolitan area in which such counsel and staff practice.
23.2 Each Party agrees to furnish to the other, within thirty (30) business days after request, such truthful, customary and reasonable estoppel information as the other may reasonably request.
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23.3 The section headings contained in this License shall not be considered to be a part hereof for purposes of interpreting or applying this License, but are for convenience only.
23.4 All of the recitals hereof are incorporated by this reference and are made a part hereof as though set forth at length herein.
23.5 This License constitutes the entire agreement and understanding of the Parties and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendment to this License must be in writing and executed by both Parties.
23.6 Either Party hereto that is represented in this transaction by a broker, agent or commission salesperson (a "Representative") shall be fully and exclusively responsible for the payment of any fee, commission or other compensation owing to such Representative, and shall indemnify and hold the other Party harmless from and against any claim to a fee, commission or other compensation asserted by such Representative, including reasonable attorneys' fees and costs incurred in defending such claim.
23.7 Each Party agrees to cooperate with the other in executing any commercially reasonable documents (including a Memorandum or short form of License) reasonably necessary to protect its rights under this License. Unless the laws of the state in which the Property is located prohibit the recordation of a memorandum or short form of License, neither Party shall record this License, but may record, in lieu thereof, the aforementioned Memorandum or short form of License. Either Party may record an easement agreement.
23.8 This License shall be construed in accordance with the laws of the county and state in which the Premises are located.
23.9 If any term of this License is found to be void or invalid, such invalidity shall not affect the remaining terms of this License, which shall continue in full force and effect.
23.10 Licensor shall be entitled to reimbursement from Licensee for Licensor's actual costs, including but not limited to administrative, legal, engineering, and consultant costs, should Licensor perform any work at the request of Licensee under this License or engage counsel due to such request by Licensee ("Licensor's Costs"), including but not limited to requests for review or approval of site plans or modifications to the Facilities or for work that relates to Licensee's use of the Facilities. Licensee shall pay Licensor such costs within thirty (30) days of Licensee's receipt of an invoice from Licensor. Upon request Licensor shall provide Licensee with documentation of Licensor's Costs; provided, however. such request from Licensee shall not delay Licensee's obligation to pay Licensor for Licensor's Costs within the foregoing time period. Should Licensee desire to contest, in good faith, the validity or the amount of the invoiced Licensor's Costs, Licensee must pay Licensor's Costs under protest, and may thereafter use such administrative, appellate, or other proceedings as may be appropriate in the jurisdiction.
Licensor shall cooperate with respect to the commencement and prosecution of any such
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proceedings, but Licensor shall be entitled to recover from Licensee, regardless of the proceeding's success, actual expenses for any administrative or legal service made necessary by Licensee's request. The expense of any such proceedings shall be borne by Licensee and any refunds secured as a result of Licensee's action shall belong to Licensee, to the extent the amounts were originally paid by Licensee. Nothing in this Miscellaneous Section shall limit Licensor's ability to recover additional costs to which it is entitled under this License or by law.
24. MORTGAGE SUBORDINATION.
This License is and shall be subject and subordinate to all ground or underlying leases of the entire Property and to all mortgages, deeds of trust and similar security documents which may be secured upon the Property as of the Effective Date, and to all renewals, modifications, consolidations, and extensions thereof. At Licensor's option, this License shall be subordinate to any future master lease. ground lease, mortgage, deed of trust or other security interest (a "Future Mortgage") by Licensor which from time to time may encumber all or part of the Property or right-of-way; provided, however, as a condition precedent to Licensee being required to subordinate its interest in this License to any Future Mortgage covering the Property, Licensor shall obtain for Licensee's benefit a non -disturbance and attornment agreement for Licensee's benefit in the form reasonably satisfactory to Licensee, which shall recognize Licensee's right to remain in occupancy of and have access to the Premises as long as Licensee is not in default of this License beyond applicable notice and cure periods
25. RADIO FREQUENCY (RF) SIGNAGE AND NOTICES.
Licensee shall install signs alerting the public, but especially workers and public safety officials, of any radio frequency emissions or other safety issues. These signs shall comply with Occupational Health and Safety Administration ("OSHA") 1910.145 and OSHA Code of Federal Regulations (CFR) 1926.200. In addition, Licensee and any permitted Sublicensee are referred to two recent FCC and OSHA enforcements orders for guidance on signage at www.fcc.gov/eb/Orders/2007/DA-07-549A1.html and www.fcc.gov/eb/Orders/2007/DA-07-2138A1.html .
26. AMENDMENTS.
The provisions of this License may be amended only by mutual written consent of the Parties.
27. NO RELOCATION ASSISTANCE.
Licensee acknowledges that Licensee is not entitled to relocation assistance, or any other benefits under the Uniform Relocation Assistance Act, or any other applicable provision of law upon termination of this License.
28. TIME.
Time is of the essence of this License.
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29. COUNTERPARTS.
This License may be executed in any number of counterparts. each of which shall be deemed an original, but all of which together shall constitute a single instrument.
Signed facsimile and electronic copies of this License shall legally bind the parties to the same extent as original documents.
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IN WITNESS WHEREOF, the Parties hereto have executed this License as of the date last written below.
"LICENSEE"
DISH WIRELESS L.L.C., a Colorado
Limited Liability Company
Date Signed:
By:
DAVID MAYO
Executive Vice President,
Network Development
Address: 5701 Santa Fe Drive
Littleton, CO 80120
Fax:
Phone: (844) 924-4186
"LICENSOR"
CITY OF SANTA MARIA, a political
subdivision of the State of California
Date Signed:
By:
SHAD S. SPRINGER, P.E., MPA
Director of Utilities
Address: 2065 East Main Street
Santa Maria, CA 93454
Fax: (805) 928-7240
Phone: (805) 925-0951
ATTEST:
By:
Chief Deputy City Clerk
APPROVED AS TO FORM
Risk Manager
City Attorney
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
Real property In the City of Santa Maria, County of Santa Barbara, State of California, described as follows:
PARCEL ONE:
THAT PORTION OF LOT B OF THE HARRIS TRACT. IN THE CITY OF SANTA MARIA COUNTY
OF SANTA BARBARA, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 1 AT PAGE 89 OF MAPS AND SURVEYS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF THE NORTHEAST 1/4 OF SECTION 10, TOWNSHIP 10 NORTH, RANGE 34 WEST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN ON A MAP OF SURVEY RECORDED IN BOOK 21 AT PAGE 92 OF MAPS AND SURVEYS, SANTA BARBARA COUNTY RECORDS; THENCE NORTH 0° 42' 19" EAST ALONG THE CENTER LINE OF THE PACIFIC COAST RAILWAY, AS SHOWN ON SAID MAP, 25.00 FEET; THENCE SOUTH 89° 34' 41" EAST ALONG A LINE 25.00 FEET NORTH OF AND PARALLEL TO THE CENTER LINE OF ALVIN STREET, AS SHOWN ON SAID MAP, 30.00 FEET TO A 2 INCH PIPE MONUMENT SET AT THE SOUTHWEST CORNER OF LOT B OF THE HARRIS TRACT, AS SHOWN ON SAID MAP; THENCE NORTH 0° 45' 19" EAST ALONG THE WEST LINE OF SAID LOT B, 150.00 FEET TO A 1-1/2 INCH PIPE MONUMENT MARKED "L.S. 2293", SAID PIPE MONUMENT BEING THE TRUE POINT OF BEGINNING OF THE PROPERTY HEREIN TO BE DESCRIBED; THENCE CONTINUING ALONG THE WEST LINE OF SAID LOT B. NORTH 0° 42' 19" EAST 1147.09 FEET TO A 2 INCH PIPE MONUMENT SET AT THE NORTHWEST CORNER OF SAID LOT B; THENCE SOUTH 89° 37' 21" EAST ALONG THE NORTH LINE OF SAID LOT B, 444.40 FEET TO A 2 INCH PIPE MONUMENT SET AT THE
NORTHEAST CORNER OF SAID LOT B, SAID NORTHEAST CORNER ALSO BEING THE NORTHWEST CORNER OF MCMILLAN MANOR TRACT NO. 6, AS SHOWN ON MAP RECORDED IN MAP BOOK 15 AT PAGE 290, SANTA BARBARA COUNTY RECORDS; THENCE SOUTH 0° 39' 43" WEST ALONG THE EAST LINE OF SAID LOT B, 1147.43 FEET TO A 1- 1/2 INCH PIPE MONUMENT MARKED "LS. 2293"; THENCE NORTH 89° 34' 41" WEST A LONG A LINE 150.00 FEET NORTH OF AND PARALLEL TO THE NORTH LINE OF SAID ALVIN STREET, 445.23 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM ALL THAT PORTION CONVEYED TO THE SANTA MARIA SCHOOL DISTRICT, BY DEED RECORDED MARCH 7, 1955, IN BOOK 1302, PAGE 70, OFFICIAL RECORDS OF SANTA BARBARA COUNTY.
PARCEL TWO:
AN EASEMENT FOR INSTALLING AND MAINTAINING A PUBLIC STREET, ASSOCIATED
WALKS AND UTILITIES, SAID DESCRIPTION IS MORE FULLY DESCRIBED ON SAID DEED RECORDED MARCH 7,1955, IN BOOK 1302, PAGE 70, OFFICIAL RECORDS OF SANTA BARBARA COUNTY.
APN: 119-010-003
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EXHIBIT "B"
DESCRIPTION AND DEPICTION OF PREMISES AND FACILITIES
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CITY OF SANTA MARIA
CONDITIONAL USE PERMIT
PLANNING DIVISION • 110 SOUTH PINE STREET ROOM 101 • SANTA MARIA CA 95456 • !05.925.0951 X 2244 PERMIT NO. U2022 — 0010
APPROVAL DATE February 15. 2023
PROJECT NAME pish Wireless Telecommunications Facility
APPLICANT/OWNER Jerry Ambrose. Eukon Grow for Dish Wireless/City of Santa Maria ADOREs3JLOCAT1oN 1000 North Railroad Avenue
DESCRIPTION Review of a Conditional Use Permit (U2022-00101 for Dish Wireless to jhlolace an existinn sports -field light pole with an U -foot -tall monopole go a 7.34 -acre site in a OS (Open Soacel district
FINDINGS
The Planning Commission hereby approves the following project in accordance with the application submitted and hereby makes the required findings in accordance with the Section 12-35.105 of the Municipal Code, including the following A That the project meets the vision, intent, and requirements of the General Plan because the project relies upon oomprshsnarve planning and urban design elements unique to the characteristics el tie project! area.
B That the site for the proposed project is adequate in size and topography to accommodate said project, and all yards, spaces, wails and fences, parking, loading and landscaping we adequate to property adapt such project with the land and uses in tie vicinity because the project would be located within an existing park that has adequate space for the wireless telecommunications facility Additionally, landscape would be introduced to the project site to minimize the visual impacts on the surrounding land and uses in the vicinity of the project C That the site for the proposed project relates to streets and highways adequate in width and pavement type to carry the quality and kind of traffic generated by the proposed project because the wireless telecommunications facility would be replacing an existing sports -field light pole within an existing park with adequate space for the facility No modifications to the existing streets and highways in the project area would be required to carry the quality and kind of traffic generated by the project use because the proposed project would generate few trips Anticipated trips to the project site would only include Dish employees for scheduled maintenance.
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That the proposed project will have no adverse effect upon abutting property because the proposed monopole and accessory equipment is not more impactful than the existing PG&E towers and other sports -field light poles in the vicinity. The monopole is replacing existing lighting and is designed to be the minimum height required to provide the needed coverage for the area. The new monopole is tall enough to allow for future collocation for other service providers at a lower height which furthers the requirements of the City's Guidelines for Telecommunications Facilities.
There are several tall sports -field light poles and trees of similar height adjacent to the proposed monopole and throughout the park which are visually compatible with the proposed project. The existing sports -filed light poles will also assist in blending the antennas into the skyline.
Conditions have been incorporated into the permit to minimize impacts to abutting property and to meet the requirements of the City's Guidelines for Telecommunications Facilities These conditions include shrub and tree planting to screen the proposed accessory equipment and requiring that all accessory equipment match proposed screening in appearance.
E. That the establishment, maintenance and/or conducting of the project for which the planned development review is sought will not, under the circumstances of the particular case, be detrimental to the health, safety, morals, or welfare of persons residing or working in the neighborhood of such project and will not, under the circumstances of the particular case, be detrimental to the public welfare, injurious to property or improvements in said neighborhood or contrary to its orderly development because the use complies with Federal Communication Commission (FCC) requirements
F That the conditions of approval stated in the permit are necessary to protect the public health, safety and general welfare.
G The project is a Class 3 Categorical Exemption based on Section 15303 of the State Guidelines for the California Environmental Quality Act ("CEQA"). This exemption is for the new construction or conversion of small structures None of the exceptions to the Class 3 Categorical Exemption that are listed in Section 15300.2 of the State CEQA Guidelines would apply. No further environmental review is required.
CONDITIONS OF APPROVAL
The project is approved subject to the following Conditions of Approval:
Community Development Department
1 Project Description The permittee shall comply with the project description and plans titled Dish Wireless Atkinson Park dated February 22, 2022 and Conditions of Approval of this permit. Any changes from the project description. Plan Set, or conditions may require a permit amendment. Contact Planning prior to changing anything described on the Plan Set or in the project description. The fence enclosing the equipment area shall not exceed 6' in height.
U2022-0010
DISH WIRELESS TELECOMMUNICATIONS FACILITY
-2-
FEBRUARY 15, 2023
CONDITIONAL USE PERMIT
BB&K Rev 2021. Risk Rev 2023
2. Shrub Planting. Shrubs shall be planted along the project frontage between Railroad Avenue and the western perimeter of the fenced enclosure to better screen the facility. The shrub planting shall be included on the landscape plan submitted with the building permit required for the project
3. FCC Compliance. As part of the building permit submittal, the applicant shall submit a report by a professional engineer demonstrating that the proposed facility will comply with all applicable FCC regulations for radio -frequency emissions.
4. Cables and Wires. All cable and wire connections between the equipment yard and the tower shall be located underground. All cables and wiring for the antennas and the sports field lighting shall be ran within the pole.
5. Coordination Recreation and Parks. The applicant shall coordinate the construction schedule with the Recreation and Parks Department. Methods of preservation of the condition of the sports facility and field during construction shall be detailed in the building permit plan submittal Upon completion of the facility, the applicant shall coordinate the schedule of maintenance and service of the facility with the Recreation and Parks Department.
6. Site Repair. Prior to the final inspection, any park improvement and/or landscape and irrigation damaged during construction shall be repaired to the satisfaction of City staff.
7. Fencing Maintenance. The applicant shall maintain the equipment enclosure yard fencing and slats in an attractive manner at all times Any fencing or slats that are damaged or worn shall be replaced with materials and colors that match the remaining fencing and slats, within 72 hours of the occurrence of such damage.
8. Ongoing Site Maintenance. The entire site shall be permanently maintained free of accumulated dirt and litter and in an otherwise neat and attractive manner and adhere to the requirements of the Santa Maria Municipal Code. Any graffiti on the property shall be promptly painted out.
Failure to comply with this condition is a public nuisance and is subject to the adopted Citation Ordinance of the City of Santa Maria.
9. Equipment appearance. The color of any new or relocated equipment in the proposed equipment shelter shall be painted to match or blend with the existing improvements All connections and conduits from the pole to the equipment shelter shall be under -grounded.
10. Mechanical Equipment Screening The proposed equipment yard chain -link fencing shall include a mesh windscreen subject to Planning Division approval during the plan check process.
U2022-0010
DISH WIRELESS TELECOMMUNICATIONS FACILITY
-3-
FEBRUARY 15 2023
CONDITIONAL USE PERMIT
BB&K Rev 2021, Risk Rev 2023
11. Noise. No significant, sustained noise should be emitted from the equipment contained within the equipment shelter (e.g. that no constant humming, buzzing. vibration or any other audible noise will occur). Otherwise, if any audible noise generation is anticipated. the potential noise source and appropriate sound mitigation measures shall be subject to the approval of the Planning Division during the plan check review process.
12. Emergency Generator Testing. Use of a generator shall be limited to service testing and emergency use in the event of power outage only. Service testing shall be limited to no more than once every two weeks, for a duration of approximately one hour.
Testing shall be limited to daytime hours between the hours of 10:00 a.m. and 5:00 p.m.
13. Emergency Generator Air Quality and Odors. Prior to issuance of a Building Permit, a clearance from the Santa Barbara County Air Pollution Control District will be required for the use and operation of the emergency generator At no time should diesel leakage or spillage occur resulting in undue odor impacts
14. Landscape and Tree Maintenance. The applicant shall develop landscape and tree maintenance standards that shall be provided to any landscape contractor hired to work on the site. The standards shall be reviewed and approved by the Planning Division prior to first occupancy. The program shall require:
A. All on -site trees be properly maintained to retain a natural shape and size for the long-term health of the tree consistent with the natural growth pattern of its particular species and current American National Standards Institute A300 standards
B Any tree topped, severely pruned or severely thinned out. subject to the determination of the Planning Division, shall require a large -size replacement.
C. Ground cover and shrubbery shall be regularly maintained and pruned in a manner that encourages healthy growth and flower production. Shrubs shall not be severely sheered or formed into unnatural shapes.
15. Tree Planting. The project shall provide the trees depicted on the landscape plan.
The trees species selected shall be subject to Planning Staff review according to Planning Commission approval Trees shall be a minimum of 15 -gallon size
16. Landscape Irrigation Water Meter A separate appropriately -sized irrigation meter is required for new non-residential projects with irrigated landscape areas totaling
1.000 square feet or greater. and for new residential projects with irrigated landscape areas totaling 5,000 square feet or greater. If a sub -meter is proposed for irrigation, it shall be a privately held and maintained meter, provided by the applicant, installed after the main water meter.
U2022-0010
DISH WIRELESS TELECOMMUNICATIONS FACILITY
-4-
FEBRUARY 15, 2023
CONDITIONAL USE PERMIT
BB&K Rev 2021: Risk Rev 2023
17. Light Standards. All on -site lighting shall comply with the Municipal Code Performance Standards. A photometric plan is required at the building permit stage, subject to Planning Division approval.
18. Utilities. All new public utility services, including electrical telephone and community television antenna services, shall be placed underground in accordance with City requirements. Location of all transformer boxes and utility equipment shall be approved by the Planning Division prior to installation. All transformer boxes and utility equipment shall be underground wherever feasible. If undergrounding is not possible, the equipment should be painted to match the surroundings and placed in inconspicuous areas out of public view.
19. Performance Standards. The requirements of the City's performance standards with respect to odor, noise, smoke, vibration and discharge of liquid and solid waste shall be maintained.
20. AB 1600 Fees AB 1600 fees apply to this project and are based on the fees in effect at the time the building permit is issued
21. Agency Requirements The applicant shall ascertain and comply with all Federal, State, County and City requirements as are applicable to this project.
22. Construction Documents. A building permit application, plans and specifications demonstrating compliance with current California Building Code (CBC) requirements must be submitted and permits obtained prior to construction.
Required plans for the project shall be prepared signed and sealed by a California registered design professional, i.e. architect or engineer. A copy of these conditions shall be incorporated into all construction documents.
23. Soils Report Required. A soils report will be required for the project and must be submitted with the building permit application. CBC 1803.
24. Indemnification The applicant shall agree to indemnify, defend (with counsel reasonably approved by the City), and hold harmless the City of Santa Maria and its officers, officials, employees, and agents from and against any and all claims, demands, actions, proceedings. lawsuits, losses, damages, judgments and/or liabilities by third parties arising out of, related to, or in connection with the project application or to attack, set aside, void, or annul. in whole or in part, an approval of the project application by the City and any related environmental approvals, development approvals or project conditions The Applicant shall reimburse the City, its agents, officers, officials, or employees, for any court costs and attorney's fees that the City, its agents, officers, officials, or employees may be required by a court to pay as a result of such action. The City may, at its sole discretion, participate at its own expense in the defense of any such action but such participation shall not relieve Applicant of his/her obligations under this provision.
U2022-0010
DISH WIRELESS TELECOMMUNICATIONS FACILITY
-5-
FEBRUARY 15 2023
CONDITIONAL USE PERMIT
BB&K Rev 2021, Risk Rev 2023
Public Works Department
ENGINEERING CONDITIONS
25. Building Plans. At time of building plan submittal. the developer shall identify the following items on the site or utility plan for the subject project:
A. Location and sizes of all proposed and existing water mains, sewer mains, water meters, water service lines, backflow prevention devices, private sewer lateral connections, and storm drainage facilities in abutting streets or on the project site
B. All parcel lines and easements crossing the project site C Locations and dimensions of all existing and proposed driveways and sidewalks
D. Location of existing and proposed fire hydrants
E. Required public improvements.
F Limits of frontage improvements
STREET AND FRONTAGE CONDITIONS
26. Frontage Repair. The developer shall repair any cracked or broken curb. gutter, sidewalk, or alley within the project frontage City Public Works Inspection staff will determine the extent of the sidewalk and curb and gutter repair in the field prior to construction.
27. Sidewalk ADA Compliance The developer shall remove and replace any sidewalk within the project frontage that does not meet ADA cross -slope requirements.
28. Intersections Sight distance requirements shall be maintained at the intersection of any street, alley, or driveway improved for vehicular traffic per City of Santa Maria Municipal Code (S.M.M.C.) Sections 12-27.02 and 12-27.03.
29. City Encroachment Permit. The developer shall obtain an encroachment permit from the Public Works Engineering Division prior to any work in public streets, alleys, or easements (S.M.M.C. Section 8-6 06)
30. Facility Easements. Prior to issuance of building permits. the developer shall provide reciprocal access or utility and drainage easements if required by the Public Works Department for the subject project.
31. City Dedicated Easements. If any easements are required to be dedicated or vacated, the developer shall submit legal descriptions. sketches (8.5" x 11" City Standard Format), closure calculations, current title report, and payment of processing fees. All paperwork shall be approved prior to issuance of building permits and recorded prior to occupancy.
32. Modification of Conditions. The Director of Public Works, Planning Commission, and City Council reserve the right to modify these conditions if they deem it necessary to ensure compliance of the project with Chapter 8-6 of the S.M.M.C.
U2022-0010
DISH WIRELESS TELECOMMUNICATIONS FACILITY
-6-
FEBRUARY 15, 2023
CONDITIONAL USE PERMIT
BB&K Rev 2021: Risk Rev 2023
Recreation and Parks Department
33. Tree Species. Four trees will be required along Railroad Avenue placed between back of sidewalk and sport field fence. Trees will be California Live Oaks, Quercus agrifolia.
34. Sitework. Telecommunication pole support system to be placed inside parking lot, overall aesthetic of facility to complement the existing park and landscape area with additional shrubbery. Replacement pole will have same or equivalent illumination system installed as fixtures removed.
35. Tree Specifications. The street trees shall be 24 -inch box in size and have a minimum caliper of 1.5 inches. The trees shall be planted six feet behind the sidewalk by a licensed landscape contractor in accordance with the plans and specifications of the Recreation and Parks Department. An irrigation system shall be provided for the trees.
36. Tree Planting. Any nursery stock tree planted without inspection and approval by the Recreation and Parks Department shall be deemed defective and be removed by the person(s) responsible for the planting at their own expense. All plant material shall not be root bound or contain girdling roots. Street tree location(s) shall be approved onsite by the Special Districts Supervisor prior to installation.
37. Landscape Plans. The following shall be noted on the landscape plan: "the final locations of street trees shall be determined on -site by the Special Districts Supervisor. Twenty-four hour notice is required for inspection prior to planting, (805) 925-0951 ext. 2346. Installation shall be in accordance with Recreation and Parks Department specifications."
NOTES:
In accordance with Section 12.35.109 of the Municipal Code, this permit is not valid until the 15th calendar day following the issuance of the permit, providing no appeal is filed; or if an appeal is filed, this permit rs not valid until the effective date of the final action on the appeal.
In accordance with Section 12-35.501 of the Municipal Code, the City may modify conditions cf approval of the permit, or may revoke the permit for non-compliance with any of the conditions of approval, or if any operations under the approved permit result in detriment to the public health. safety or welfare.
This permit will not be valid until the applicant and property owner have submitted sgned acknowledgment of their consent to the conditions, in accordance with Section 12-35 109 of the Santa Mane Municipal Code, to the Planning Division of the Community Development Department.
In accordance with Section 12-35.501 of the Municipal Code, this permit shall become null and void if the development authorized is, or has been, unused. abandoned, discontinued, or development has not been corrrnenced within a period of three (3) years. However, the approval body may consider extensions of time for additional periods of up to two (2) years each, for a maximum overall permit life of seven (7) years. A written request justifying the need and the appropriate filing fee filed with the Community Development Department shall be submitted prior to the expiation date Failure to comply with any of the conditions stated above may be cause for revocation or modification ci this permit, in addition to any other penalties provided by law.
All conditions of approval are to be completed prior to occupancy unless otherwise stated, and are to be maintained in perpetuity.
U2022-0010
DISH WIRELESS TELECOMMUNICATIONS FACILITY
_7.
FEBRUARY 15, 2023
CONDITIONAL USE PERMIT
BB&K Rev 2021 Risk Rev 2023
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BB&K Rev 2021 Risk Rev 2023
COMMUNICATIONS SITE
LICENSE AGREEMENT
BETWEEN
CITY OF SANTA MARIA
AND
DISH WIRELESS L.L.C.
FOR A PORTION OF PROPERTY AT
1000 NORTH RAILROAD AVENUE,
SANTA MARIA, CALIFORNIA 93454,
APN 119-010-003
21466.00021\33936571.2
Attachment "A"
COMMUNICATIONS SITE LICENSE AGREEMENT
This Communications Site License Agreement ("License") is made as of the latter of the signature dates below ("Effective Date"), by and between the City of Santa Maria, California, a California Municipal Corporation, charter city, and political subdivision of the State of California ("Licensor"), with its principal place of business at 110 East Cook Street, Santa Maria, California 93454, and DISH Wireless L.L.C., a Colorado limited liability company ("Licensee"), with its principal place of business at 9601 South Meridian Boulevard, Englewood, Colorado 80112. Licensor and Licensee are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
1. RESERVED.
2. PREMISES & GRANT OF AUTHORITY.
2.1 Licensor is the record owner of a piece of real property generally located at 1000 North Railroad Avenue, Santa Maria, County of Santa Barbara, California, Assessor's Parcel Number 119-010-003, legally described in Exhibit "A" ("Property") attached hereto and made a part hereof. Licensor hereby licenses to Licensee a portion of the Property being described as a ten -foot (10') by ten -foot (10) parcel containing approximately one hundred (100) square feet (the "Land Space"), together with the nonexclusive right for ingress and egress along those designated rights of way to and from public rights of way to the Land Space (the "Rights of Way"). The Land Space and Rights of Way (hereinafter collectively referred to as the "Premises") are hereby specifically licensed as depicted in Exhibit "B" attached hereto and made a part hereof, and no permission granted apart from Exhibit "B" is either expressed or implied.
2.2 Subject to the terms and conditions of this License, Licensee is authorized to use the Premises only for the purpose of constructing, maintaining, repairing, and operating communications facilities ("Facilities") as specifically described and depicted in Exhibit "B," and uses incidental thereto (collectively, "Licensee's Permitted Use"). All Facilities shall be at Licensee's expense. Notwithstanding this Premises & Grant of Authority Section subject to the Interference Section below, Licensee shall have the right to replace, repair, add, or otherwise modify its Facilities or any portion thereof and the frequencies over which any Facilities operate during the Initial Term and each Renewal Term, defined below. Notwithstanding Licensor's approval of Licensee's use of the Premises or the Property, nothing in this License may be deemed to grant, convey, create, or vest in Licensee a real property interest in land, including any fee, leasehold interest, or easement.
2.2.1 All Parties acknowledge that Licensor, in executing this License, is acting only in its capacity as the owner of the Property and Premises, and not in any regulatory capacity. Licensee shall not consider this License as approval of any applicable permits, licenses or other regulatory or governmental approvals required for the construction or operation of the Facilities.
BB&K Rev 2021; Risk Rev 2023
2.2.2 All Parties further acknowledge that Licensee shall install and operate the Facilities in a good and competent manner and that such installation and operations are at all times in compliance with applicable federal, state, and local laws.
3. TERM.
3.1 The initial term of this License shall be five (5) years (the "Initial Term"), commencing upon the date Licensee is granted a building permit by the governmental agency charged with issuing such permits, or the date of full execution of the License by the Parties, whichever is later. In the event the date at which Licensee is granted a building permit or the date of execution of the License, whichever is applicable, falls between the first (181) and fifteenth (15th) of the month, the License shall commence on the first (1st) of that month, and if such date falls between the sixteenth (16'") and thirty- first (3151) of the month, then the License shall commence on the first (15') day of the following month (either the "Commencement Date"). Notwithstanding anything to the contrary in License Fee Section below, Licensor and Licensee acknowledge and agree that initial rental payment(s) shall not actually be sent by Licensee until thirty (30) days after the Commencement Date. The Initial Term of this License shall expire at Midnight on the day before the fifth (5111) anniversary of the Commencement Date.
3.2 Provided that Licensee is not in default of this License beyond applicable notice and cure periods and has not provided written notice to Licensor outlining Licensee's intention to terminate this License more than one hundred and twenty (120) days prior to the expiration of the current term, this License shall automatically be extended for four (4) additional, five (5) year terms (each being a "Renewal Term"), subject to all terms and conditions of this License.
3.3 If Licensee shall remain in possession of the Premises at the expiration or earlier termination of this License, such possession shall be deemed a holdover use under the same terms and conditions of this License, except that the License Fee shall be one hundred twenty-five (125%) percent of the License Fee in effect at the expiration or earlier termination of this License. Nothing contained herein shall grant Licensee the right to holdover after the term of this License has expired and notwithstanding the payment of license fees during the holdover period, Licensor shall have the right to require Licensee to vacate the Property and Premises at any time upon thirty (30) days written notice.
4. LICENSE FEE.
4.1 On the Commencement Date, License Fee payments shall commence on a monthly basis at a total annual rate of Thirty -Six Thousand Six Hundred Dollars and Zero Cents ($36,600.00) (the "License Fee").
4.1.1 The License Fee shall automatically increase on the anniversary of each Commencement Date, by an amount equal to three (3) percent per annum above the amount of the License Fee in effect immediately prior to such increase.
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4.1.2 The License Fee shall be payable in advance without offset or deduction to the "City of Santa Maria" at Licensor's address specified in the Notices Section below or to any other person or firm as Licensor may, from time to time, designate in writing at least sixty (60) days in advance of any License Fee payment date.
4.1.3 If, at any time, Licensee fails to make timely payment, Licensee shall pay a late penalty of five (5) percent or the maximum allowable by law, whichever is less, of the amount owed until paid in full. These rights are in addition to all rights of Licensor to terminate this License if Licensee fails to cure such breach beyond the applicable notice and cure periods provided herein.
4.1.4 All sums payable by Licensee under this License, whether or not stated to be License Fees or additional License Fees, shall be collectible by Licensor as License Fees, and upon default in payment thereof, Licensor shall have the same rights and remedies as for failure to pay License Fees, without prejudice to any other right or remedy available therefore.
4.2 Licensee shall have the right to sublicense the Premises as provided for in Assignment Section below and the Collocation Section below.
4.3 Within forty-five (45) days of the Effective Date, Licensee will pay to Licensor as additional rent a one-time payment of Five Thousand Dollars and Zero Cents ($5,000.00) as reimbursement for legal fees incurred by Licensor in conjunction with the negotiation and preparation of this License.
4.4 Within forty-five (45) days of the Effective Date, Licensee will pay to Licensor as additional rent a one-time payment of Ten Thousand Dollars and Zero Cents ($10,000.00) as a signing bonus in conjunction with the preparation of this License.
4.5 Licensee shall have the right to use a direct deposit system with regard to License Fee payments. Licensor agrees to cooperate with Licensee in providing requisite information to Licensee for such direct deposit. The implementation of the direct deposit system shall be at Licensee's sole expense.
5. ASSIGNMENT.
Upon prior written notice to Licensor, this License may be sold, assigned or transferred by the Licensee without any approval or consent of the Licensor to the Licensee's principal subsidiaries of its principal or to any entity which acquires all or substantially all of Licensee's assets in the market defined by the Federal Communications Commission ("FCC") in which the Property is located by reason of a merger, acquisition, or other business reorganization. As to other parties, this License may not be sold, assigned, or transferred without the express prior written consent of Licensor, in Licensor's sole and exclusive discretion. Licensee shall reimburse Licensor for all its reasonable out-of-pocket attorneys' fees and costs of reviewing such requests for consent. Subletting and collocation shall be governed by Collocation Section of this License.
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6. DUE DILIGENCE GUARANTEE.
6.1 Notwithstanding the provisions for a License Fee and the designation of the Commencement Date above, immediately upon the execution of this License, Licensee shall pay to Licensor the total sum of twenty (20) percent of the annual License Fee (the "Due Diligence Fee") for the twelve (12) month period commencing upon the Effective Date (the "Due Diligence Period") as a guarantee of Licensee's due diligence in processing and pursuing the building permit necessary for the construction of the Facilities.
6.2 If the Commencement Date has not yet accrued upon the expiration of the Due Diligence Period, Licensee may extend the initial Due Diligence Period for an additional twelve (12) months (the "Extended Due Diligence Period") with the payment of a second (2nd) Due Diligence Fee. Said Extended Due Diligence Period shall expire at midnight twelve (12) months from the date of payment of the second (2"d) Due Diligence Fee.
6.3 If the Due Diligence Period or the Extended Due Diligence Period, as applicable, expires for Licensee's failure to effectuate the Commencement Date or Licensee's failure to option the Extended Due Diligence Period, this License shall expire, and be null and void. Licensor shall retain any and all License Fees, Due Diligence Fees, or any other sums of money paid to Licensor by Licensee up until the date of expiration.
6.4 If Licensee effectuates the Commencement Date prior to the expiration of the Due Diligence Period or the Extended Due Diligence Period, as applicable, Licensor shall retain Licensee's Due Diligence Fee(s), which shall be applied to Licensee's License Fee obligation as a credit. No interest shall accrue on Licensee's Due Diligence Fee(s).
7. INTERFERENCE.
7.1 Licensee acknowledges that avoiding radio interference with Licensor's operations is a material condition of this License. Licensee acknowledges that avoiding measurable interference with existing equipment of Licensee is a material condition of this License. Prior to adding any equipment or changing any operation which could result in interference to Licensor's operations, Licensee agrees to conduct tests and prepare a report acceptable to Licensor describing its proposed equipment, type of frequency, operational effects, and likely future scenarios. The Licensee agrees to make reasonable changes to its operations in order to avoid interference.
7.2 Licensee also acknowledges and understands that there may be communications facilities on Property belonging to one or more third parties (referred to as the "Prior User(s)") that has entered into an agreement(s) (the "Prior Use Agreement(s)") with Licensor, pursuant to which the Prior User(s) has(ve) been permitted to install and operate communications equipment on the Property. Where applicable, Licensee represents and warrants that prior to the execution of this License, Licensee has determined that the Prior Users present no material interference with Licensee's intended use within the Premises.
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7.3 Licensee shall operate its Facilities in a manner that will not cause interference with the use or enjoyment of the Property by Licensor and all Prior Users in and/or on the Property as of the Effective Date, including but not limited to, the Master Antenna Television (MATV) systems; heating, ventilation, and air conditioning (HVAC) systems; roof; electronically controlled elevator system; computers; telephone systems; or any other system serving the Property and/or its occupants. If Licensee's Facilities cause such harmful interference, Licensee will immediately take all steps necessary to correct and eliminate the interference, including but not limited to, at Licensee's option, powering down such equipment and later powering up such equipment for intermittent testing. If such interference cannot be corrected or powered down within two (2) days after Licensee is advised of such interference, Licensor may require that Licensee cease (or cause the cessation of) operation of the interfering equipment until such interference can be so corrected at which time the operation of such equipment may resume. Licensor hereby acknowledges that Licensee's Permitted Use of the Premises shall not constitute an impermissible interference. Licensee acknowledges that Licensor assumes no risk or liability for any interference with Licensee's use of the Property which results from the operation of communications equipment on the Property by the Prior User(s) under the Prior Use Agreement(s) and agrees that Licensor shall be held harmless from claims due to any such interference, pursuant to the indemnification terms set forth in this License.
7.4 All operations of Licensee shall be lawful and in compliance with all applicable Governmental Requirements (as hereafter defined), rules and regulations including, but not limited to those of the FCC and the Federal Aviation Administration (FAA). "Governmental Requirements" shall mean all applicable requirements under any applicable federal, state, or local statutes, rules, regulations, ordinances, or other requirements of any duly constituted public authority having jurisdiction over the Property (including, without limitation, the Premises). Should Licensee be notified by any applicable government agency of any violation pertaining to the Premises, it must share said notice with Licensor within ten (10) business days after Licensee's receipt of such notice and Licensee shall provide Licensor nonproprietary documentation from the government agency that Licensee has cured the violation. Licensee shall indemnify Licensor and hold it harmless from all expenses, costs, damages, loss, claims, or other expenses and liabilities arising from any measurable interference to the extent caused by Licensee's failure to comply with FCC or FAA rules and regulations that is not curtailed within thirty (30) days after Licensee receives written notice of such interference from Licensor. Licensee shall be responsible for all costs associated with any tests reasonably deemed necessary to resolve interference to the extent the same is caused by Licensee's Facilities. If such interference caused by Licensee's failure to comply with FCC or FAA rules and regulations has not been corrected within thirty (30) days after Licensee receives notice thereof from Licensor, Licensor may require Licensee to remove the specific items from the Facilities causing such interference.
7.5 Licensor reserves the right to license other portions of the Property to other parties during the term of this License. Accordingly, Licensor agrees that any other person or entity who may install equipment subsequent to the Commencement Date in and/or on the Property shall be permitted to install only such communications equipment that is of the type and frequency that will not cause any interference to Licensee or persons or
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entities claiming through or under Licensee. In the event any such person or entity's equipment causes such interference, Licensor will cause the interfering party to take all steps necessary to correct and eliminate the interference or such interfering party will be required to cease operations until such interference is removed. To the extent that Licensee's operations are not within the parameters of its FCC license, this protection from co -located interference will not be applicable, but it shall be applicable with respect to those operations, or portions thereof, falling within the FCC license parameters. In the event that Licensee commences using the Premises in a manner as to which Licensee is not presently licensed by the FCC, but with respect to which Licensee hereafter obtains necessary FCC licensure, Licensee's right to conduct such particular new use shall be subordinate to the then existing use of the Property by Licensor, other licensees or occupants thereof existing on or before the date on which Licensee commences such new use. If any such subsequent users cannot correct such harmful interference within twenty (20) business days of Licensee's written notification thereof to Licensor, Licensee may terminate this License upon sixty (60) days written notice to Licensor and obtain a refund of prepaid unused amounts of the License Fee, or seek injunctive or other legal relief against/from such subsequent third party users. The refund shall be Licensee's sole and exclusive remedy and recovery as against Licensor for any interference, and Licensee hereby waives any other rights or remedies it may have at law or in equity against Licensor related thereto. The parties recognize and agree that it is the intention of this Interference Section that Licensor not become embroiled in any disputes or proceedings between Licensee and any other users of the Property, and/or expend funds as a result thereof; therefore, Licensee agrees to indemnify, defend, and hold harmless the Licensor against any claim related to or arising from any disputes or proceedings between Licensee and any other users of the Property.
8. IMPROVEMENTS & UTILITIES.
8.1 Prior to installing any new Facilities, or modifying any portion of the existing Facilities ("Additional Facilities") in or on the Premises, Licensee shall submit detailed engineering plans and specifications of the Additional Facilities to Licensor for Licensor's written approval, which approval shall not be unreasonably withheld, delayed or conditioned. Licensor's review of Licensee's plans shall include a review of the appearance of the Additional Facilities and shall be at no cost to the Licensor. The Additional Facilities to be installed must be in compliance with all applicable federal, state, and local laws, including but not limited to applicable local zoning requirements, and will adhere to all applicable technical standards set forth in this License. Licensor's approval of any installation is not a representation that such installation of the Additional Facilities is in compliance with all applicable governmental laws, ordinances, rules and regulations or that such Additional Facilities will not cause interference with other communications systems, if any, then in operation on the Property. Licensee hereby confirms and agrees that the Additional Facilities shall be installed and operated solely within the Premises, unless otherwise agreed to in writing by the Parties. Notwithstanding anything to the contrary herein, in no event will Licensor's approval be required in order for Licensee to perform maintenance, repairs, or like -for -like replacements of any portion of the Facilities, provided such like -for -like replacements consist of swapping out of equipment and/or antennas of the same size, dimensions, shape, and color, and/or "like for like"
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replacement of equipment within an existing equipment room or enclosure without expansion of the room or enclosure.
8.2 All work by Licensee shall be performed in compliance with applicable laws and ordinances. During Licensee's construction of its Facilities, Licensee shall have, and Licensor hereby grants to Licensee, a temporary license to use portions of the Property reasonably necessary for the storage of materials and staging of construction, provided such additional space does not unreasonably impede, interfere, or inhibit Licensor's use of the Property, in Licensor's sole and complete discretion. Licensee and its contractors and subcontractors shall be solely responsible for the transportation, storage and safekeeping of materials and equipment used in the performance of any work on behalf of Licensee, for the removal of waste and debris resulting there from on a daily basis, and for any damage to the extent caused by them to any installations or work performed by Licensee's contractors and subcontractors. Upon completion of construction, Licensee shall remove any items stored or placed by Licensee in such temporary license area, and return such area to Licensor in the condition existing prior to construction, reasonable wear and tear excepted.
8.3 Licensee is not authorized to contract for or on behalf of Licensor for work on, or the furnishing of materials to the Premises or any other part of the Property, and Licensee shall discharge of record by payment, bond or otherwise, within fifteen (15) days subsequent to the date of Licensee's receipt of written notice thereof from Licensor, any mechanic's, laborer's or similar lien filed against the Premises or the Property for work or materials claimed to have been furnished at the direction of Licensee or Licensee's agents. The Facilities shall remain the exclusive property of Licensee during the term of this License, and Licensee shall have the right to remove all or any portion of the Facilities at any time during the term of this License or following the term of this License as hereinafter provided.
8.4 Licensee will notify Licensor prior to commencing any work on the Property.
Prior to commencing any installation, Licensee, upon Licensor's request, will at its own cost and expense deliver to Licensor a certificate of insurance confirming that commercial general liability insurance as required by this License, has been obtained and is in place.
Licensee's contractor will include Licensor and Licensor's, its officials, officers, agents, and employees as additional insured under contractor's general and automobile liability insurance policies. Prior to Licensee's commencement of the initial installation of the Facilities, Licensee shall provide Licensor with copies of any applicable licenses and permits from all applicable governmental or regulatory entities ("Governmental Approvals") obtained by Licensee with respect to this License.
8.5 All installation and other work to be performed by Licensee hereunder will be done in such a manner so as not to interfere materially with, delay, or impose any material additional expense upon Licensor in maintaining, operating or using the Property.
In no event will Licensor be required to consent to any installation or other work by Licensee which would physically affect any part of the Property outside the Premises (other than with respect to the temporary construction license, which shall be subject to Licensee's duty to restore such area as provided herein). Licensee shall repair any
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damage to the extent caused by Licensee to Licensor's Property, excepting reasonable wear and tear, and casualty damage.
8.6 Within ninety (90) days of any termination or expiration of this License, Licensee shall remove all of its Facilities from the Premises and Property. In performing such removal, Licensee shall restore the Premises and any personal property and fixtures thereon to as good a condition as they were in prior to the installation or placement of the Facilities, excepting reasonable wear and tear. If Licensee fails to remove all of its Facilities within ninety (90) days after expiration or earlier termination of this License, Licensor may remove and dispose of the Facilities, and Licensee shall reimburse Licensor for the reasonable costs actually incurred for such removal and restoration of the Premises, or Licensor may deem the Facilities abandoned, whereupon the Facilities shall become Licensor's sole personal property. Licensee shall, at Licensee's expense, keep, and maintain the Premises in commercially reasonable condition and repair during the term of this License. Licensee agrees to maintain its Facilities in proper operating condition and within industry accepted safety standards. All installations and operations of the Facilities by Licensee shall comply in all respects with all applicable rules and regulations of the FCC and all applicable federal, state, city, county, and local codes and regulations. Licensor assumes no responsibility for the licensing, operation or maintenance of the Facilities. Licensee has the responsibility of carrying out all of the terms of its FCC license.
8.7 Licensee shall have the right, at Licensee's expense, to install or improve utilities within the Property and to install or improve utilities on the Premises. All utility routes not already depicted in the site plans attached as Exhibit "B" hereto must be approved by Licensor prior to construction, which approval shall not be unreasonably withheld, conditioned, or delayed. Licensee, at Licensee's sole expense agrees to have a separate meter(s) installed for Licensee's utility service consumption, whereupon, Licensee shall pay the applicable service utility directly for its usage.
9. ACCESS.
9.1 Licensee and its authorized personnel, as defined below, shall be entitled to access to the Premises for ingress and egress on foot or motor vehicle, seven (7) days a week, twenty-four (24) hours a day, provided Licensee first calls or emails Licensor's representative at (805) 925-0951 ext. 2260 or commsitegroup©cityofsantamaria.org at least forty-eight (48) hours in advance of any proposed entry by Licensee to allow a representative of Licensor to be present during any such entry, provided however, that in the event of an emergency, Licensee shall provide Licensor with prior telephonic notice if such notice is reasonably practicable in the situation, or if prior notice is not reasonably practicable, Licensee shall provide telephonic notice as soon as practicable after Licensee's access to the Premises. For purposes hereof, authorized personnel shall mean only authorized employees, engineers, technicians, or properly authorized contractors of Licensee or persons under their direct supervision and carrying appropriate identification credentials evidencing said authority. All access to the Premises by Licensee shall be subject to compliance with reasonable rules and regulations (which are not inconsistent with the terms and conditions of this License) promulgated by Licensor
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from time to time in effect at the Property, of which Licensor shall inform Licensee in writing.
10. EVENTS OF DEFAULT.
10.1 It shall be an Event of Default if any one or more of the following events shall occur:
10.1.1 Licensee fails to make any payment when due of any License Fees or other sum of money specified hereunder to be paid by Licensee and Licensee does not remedy such breach within twenty (20) days after Licensee's receipt of written notice thereof from Licensor; or
10.1.2 Licensee fails to perform any other of the terms, conditions, or covenants contained in this License to be performed or observed by Licensee other than that specified in the immediate preceding subsection above, and Licensee does not remedy such breach within thirty (30) days after Licensee's receipt of written notice thereof from Licensor; provided Licensee shall have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and Licensee commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion.
10.1.3 Licensor shall be in breach, 1) if having been put on notice in writing by Licensee for failure to perform a term, or comply with a condition or covenant outlined in the License, and 2) Licensor has not cured said claim within sixty (60) days.
Notwithstanding the above, all Parties agree that Licensor shall have more than sixty (60) days to cure any default which by its nature cannot be cured within sixty (60) days of the written notice from Licensee. In order to claim this extra time, Licensor must commence the cure within the sixty (60) day period and thereafter continuously and diligently pursue the cure to completion.
10.1.4 Upon the occurrence of an Event of Default, the non -defaulting Party may at its option (but without obligation to do so), perform the defaulting Party's duty or obligation on the defaulting Party's behalf, including but not limited to the obtaining of reasonably required insurance policies. The costs and expenses of any such performance by the non -defaulting Party shall be due and payable by the defaulting Party upon invoice therefor. If an Event of Default is not cured within the applicable cure period by the defaulting Party, without limiting the non -defaulting Party in the exercise of any right or remedy which the non -defaulting Party may have by reason of such default, the non - defaulting Party may terminate this License and/or pursue any remedy now or hereafter available to the non -defaulting Party under the laws or judicial decisions of the state of California (the state in which the Premises are located); provided, however, both Parties shall use reasonable efforts to mitigate their damages in connection with a default by the other Party.
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11. TERMINATION BY LICENSEE.
11.1 Following the Commencement Date, and except as otherwise provided herein, provided that no Event of Default by Licensee exists at the time of issuance of Licensee's written notice, this License may be terminated by Licensee, subject to the requirements of Improvements & Utilities Section above, under the following circumstances:
11.1.1 Upon sixty (60) days prior written notice if Licensee can document that soil boring tests reveal that the site cannot meet industry standards;
11.1.2 Upon sixty (60) days prior written notice if any necessary application for any Governmental Approvals that are required by any federal, state or local authorities (including the FCC) should be finally rejected or are canceled, expired, lapsed, or otherwise withdrawn or terminated by governmental authority (due to no fault of Licensee);
11.1.3 After the Initial Term, upon sixty (60) days prior written notice and without penalty or further liability, if Licensee is unable to operate the Facilities in accordance with Licensee's Permitted Use on the Premises as a result of measurable interference (other than on a temporary, non -recurring basis) resulting from the act of Licensor or any third party;
11.1.4 Upon Licensee terminating in accordance with this Termination By Licensee Section Licensee shall surrender and vacate the Premises and deliver possession thereof to Licensor within ninety (90) days of the termination date in the condition required under this License for surrender of the Premises.
12. CASUALTY AND CONDEMNATION.
12.1 If at any time during the term of this License, through no fault of the Licensee, all or "substantially all" (meaning the remaining portion thereof shall not be of sufficient size or condition to permit the continuation of Licensee's Permitted Use in a commercially reasonable manner) of the Facilities upon the Premises shall be damaged and/or destroyed by fire or other casualty, then Licensee may terminate this License by providing sixty (60) days written notice to Licensor, which termination shall be effective as of the date of such damage and/or destruction, and whereupon Licensee shall be entitled to collect all insurance proceeds payable on account thereof and the reimbursement of any prepaid License Fee, to be apportioned as of the termination date. Licensee must nevertheless surrender and vacate the Premises and deliver possession thereof to Licensor within ninety (90) days of the termination date in the condition required under this License for surrender of the Premises.
12.2 If at any time during the term of this License all or "substantially all" (as described in the immediate preceding subsection above) of the Premises or the improvements located on the Property shall be taken in the exercise of the power of eminent domain by any governmental or other authority, or by deed in lieu of condemnation, then Licensee may terminate this License by providing written notice to
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Licensor, which termination shall be effective as of the date of the vesting of title in such taking and any prepaid License Fee shall be apportioned as of said date and reimbursed to Licensee. Licensor and Licensee shall each be entitled to pursue their own separate awards with respect to such taking, but in any event, Licensee's award shall be limited to lost improvements investment, relocation, and loss of business. In the event of any taking of less than all or substantially all of the Premises, if the Premises are still fully operational, this License shall continue.
13. TAXES.
Licensor hereby provides notice pursuant to California Revenue and Taxation Code Section 107.6, and Licensee acknowledges that this License may create a possessory interest and Licensee may be subject to property taxes levied on such interest, as described in California Revenue and Taxation Code Section 107. Licensee shall pay, when due, all real and personal property taxes, fees and assessments, assessed against the Premises and the Licensee's Facilities and shall reimburse Licensor for any increase in real property or possessory interest taxes levied against the Property as a result of the improvements constructed by Licensee on the Premises only for so long as this License has not expired of its own terms or is not terminated by either party. .
14. INSURANCE, RELEASE AND HOLD HARMLESS.
14.1 Licensee shall, at Licensee's sole cost and expense, procure and continue in force during the term of this License, including any Renewal Term:
14.1.1 Workers Compensation insurance at statutory limits, including Employee's Liability coverage with limits of one million dollars ($1,000,000) each accident; one million dollars ($1,000,000) by disease each -employee; and one million dollars ($1,000,000) by disease -policy limit;
14.1.2 Commercial General Liability insurance with limits of two million dollars ($2,000,000) per occurrence for bodily injury and property damage, and two million dollars ($2,000,000) general aggregate including contractual liability products/completed operations, and Explosion, Collapse, Underground (XCU) hazards;
14.1.3 Commercial Automobile Liability insurance with a combined single limit of one million dollars ($1,000,000) each accident for bodily injury and property damage covering all owned, non -owned, and hired vehicles;
14.1.4 "All-risk" property insurance insuring Licensee's Facilities and its appurtenant personal property for full replacement costs.
14.2 Any Subcontractor(s) hired by the Licensee shall maintain substantially the same insurance coverage as required of the Licensee. It is the responsibility of the Licensee to assure compliance with this provision. Santa Maria accepts no responsibility arising from the conduct, or lack of conduct, of the Subcontractor.
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14.2.1 Builders Risk coverage (if applicable) as follows:
(a) All Risk Builders Risk insurance, including collapse coverage, is required on a completed value form if the contract is for the construction of a structure or building.
(b) The Builders Risk policy must provide transit and off -premises coverage if the contract with the builder makes Licensee responsible for materials.
14.2.2 Comprehensive General Liability insurance form may be used in lieu of a Commercial General Liability insurance form. In this event, coverage must be written on an occurrence basis, at limits of two million dollars ($2,000,000) each -occurrence, combined single limit, and coverage must include products/completed operations, Explosion, Collapse, Underground (XCU) hazards, and contractual liability.
14.2.3 With reference to the foregoing insurance requirement, the insurance policies as follows shall:
(a) Include the City of Santa Maria as an additional insured as their interest may appear under this License with respect to all Liability policies. (b) All liability policies shall contain no cross liability exclusions or insured versus insured restrictions.
(c) All insurance policies, which include the City of Santa Maria as an additional insured, shall be primary coverage regardless of the application of other insurance as relates to Licensee operations.
(d) Required limits may be satisfied by any combination of primary and umbrella liability insurances.
(e) Insurance must be purchased from insurers that are rated at least A- by AM Best.
(0 Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent.
14.2.4 Upon receipt of notice from its insurer, Licensee will use its best efforts to provide the Licensor with thirty (30) days prior written notice of cancellation.
14.3 Licensee hereby releases Licensor and Licensor's property manager, if any, and their respective agents, employees, officers, directors, shareholders, and partners (collectively the "Releasees") from, and shall not hold Releasees liable for, any liability for personal injury, consequential damages, loss of income or damage to or loss of property or persons, or loss of use of any property, in or about the Premises from any cause whatsoever unless such damage, loss or injury directly results from the negligence or willful misconduct of the Releasees. Further, the Releasees shall not be liable to Licensee for any such damage or loss to the extent Licensee is compensated or would have been
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compensated by the insurance, which Licensee is obligated to maintain pursuant to this Insurance, Release & Hold Harmless Section.
14.4 Licensee agrees to indemnify, defend and hold the Releasees harmless from and against injury, loss, damage or liability (or any claims with respect to the foregoing), costs or expenses (including reasonable attorneys' fees and court costs) which may be imposed upon or incurred by or asserted against Releasees occurring during the term of this License, or after the expiration date hereof when Licensee may have been given access to or possession of all or any part of the Premises to the extent arising from:
14.4.1 Any work or act done in, on or about the Premises or any part thereof at the direction of Licensee, its agents, contractors, subcontractors, servants, employees, licensees or invitees, including but not limited to the installation, use, maintenance, repair or removal of the Facilities, except if such work or act is done or performed by Licensor or its agents or employees;
14.4.2 Any negligence or other wrongful act or omission on the part of Licensee or any of its agents, contractors, subcontractors, servants, employees, sub - licensees, licensees or invitees;
14.4.3 Any accident, injury or damage to any person or property occurring in, on or about the Premises to the extent caused by Licensee's negligence or willful misconduct, or any part thereof, unless caused by the negligence or willful misconduct of Licensor, its employees or agents; and
14.4.4 Any failure on the part of Licensee to perform or comply with any of the covenants, agreements, terms, provisions, conditions or limitations contained in this License on its part to be performed or complied with.
14.5 The Parties hereby waive and release any and all rights of action for negligence against the other which may hereafter arise on account of damage to the Premises or to the Property, resulting from any fire, or other casualty of the kind covered by standard fire insurance policies with extended coverage, regardless of whether or not, or in what amounts, such insurance is now or hereafter carried by the Parties, or either of them. These waivers and releases shall apply between the Parties and they shall also apply to any claims under or through any other policy required under this contract by either Party as a result of any asserted right of subrogation. All such policies of insurance obtained by either Party shall waive the insurer's right of subrogation against the other Party.
15. NOTICES.
All notices, requests, and demands hereunder will be given in writing by first class, certified or registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to be effective when properly sent and received, refused or returned undelivered. Notices, requests and demands will be addressed to the parties as follows:
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If to Licensor, to:
Director of Utilities
City of Santa Maria
2065 East Main Street
Santa Maria, CA 93454
If to Licensee, to:
DISH Wireless LLC.
Attn: Lease Administration
5701 South Santa Fe Boulevard
Littleton, CO 80120
Either party may change the address or persons to which notices are to be sent to it by giving thirty (30) days' prior written notice of such change to the other party in the manner provided herein.
16. QUIET ENJOYMENT, TITLE, AND AUTHORITY.
Licensor covenants and warrants that (i) it has full right, power and authority to execute this License and has the power to grant all rights hereunder; and (ii) it has good and marketable title to the Property free and clear of any liens, mortgages, restrictions or other encumbrances that will interfere with Licensee's Permitted Use of the Premises.
17. NO WARRANTY.
17.1 Licensee's right to use the premises, and the property is strictly on an "as is" basis with all faults. Licensor makes no representation or warranty of any kind as to the present or future condition of or suitability of the property, or the premises for licensee's use and disclaims any and all warranties express or implied with respect to the physical, structural, or environmental condition of the property, and premises and the merchantability or fitness for a particular purpose. Licensee is solely responsible for investigation and determination of the condition and suitability of the property, and premises for licensee's intended use.
18. HAZARDOUS SUBSTANCES.
18.1 For purposes of this License, the term "Hazardous Substances" means: (a) any substance, products, waste, or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 United States Code Section 9601 et seq.; the Resources Conservation and Recovery Act, 42 United States Code Section 6901 et seq.; the Hazardous Materials Transportation Conservation and Recovery Act, 42 United States Code Section 1801 et seq.; the Clean Water Act, 33 United States Code Section 1251 et seq.; the Toxic Substances Control Act, 15 United States Code Section 2601 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the Hazardous Substance Account Act, Health and Safety Code Section 25330 et seq.; the California Safe Drinking Water and Toxic
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Enforcement Act, Health and Safety Code Section 25249.5 et seq.; California Health and Safety Code Section 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Section 25170.1 et seq.; California Health and Safety Code Section 25501 et seq. (Hazardous Materials Release Response Plans and Inventory); or the California Porter -Cologne Water Quality Control Act, Water Code Section 13000 et seq., all as amended; or any other federal, state, or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance, now or at any time hereinafter in effect; (b) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory based on negligence, trespass, intentional tort, nuisance or strict liability or under any reported decisions of a state or federal court; (c) petroleum or crude oil, other than petroleum and petroleum products which are contained within regularly operated motor vehicles; and (d) asbestos.
18.2 Except as otherwise specifically permitted under the terms of this License, Licensee shall not use, create, generate, store, deposit, dispose of or allow any Hazardous Substances on, under, about or within the Property or Premises in violation of any federal, state, or local law, rule, regulation, order, decree or other requirement listed in this Hazardous Substances Section. Batteries for emergency power and fuel for temporary generators during power outages may only be used or stored on -site with the prior written approval of Licensor. Onsite use, but not storage, of ordinary paints, solvents and similar substances commonly used in small quantities and necessary for maintenance of Licensee's Communications Facility are excepted from the preceding prohibition of use by Licensee of Hazardous Substances on the Premises and the Property, so long as Licensee complies with all applicable federal, state and local laws rules and regulations governing the use of such items.
18.3 Unless listed in Exhibit B, no underground or above ground storage tanks shall be installed on Premises.
18.4 Licensor or its officers, employees, contractors, or agents shall at all times have the right to go upon and visually inspect the Premises and the operations conducted thereon to assure compliance with the requirements herein stated. This inspection may also include taking samples for chemical analysis of substances and materials present and/or testing soils on the Premises and taking photographs. Except in case of emergency, Licensor will not take samples or test soils on the Premises without providing Licensee with reasonable notice and the opportunity to have a representative present.
18.5 Licensee shall, within forty-eight (48) hours of the discovery by Licensee of the presence of, or believed presence of, a Hazardous Substance as defined herein, give written notice to Licensor in the event that Licensee knows or has reasonable cause to believe that any release of Hazardous Substance has come or will come to be located on, under, about or within the Premises. The failure to disclose in a timely manner the release of a Hazardous Substance by Licensee, including but not limited to, an amount which is required to be reported to a state or local agency pursuant to law (e.g.,
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California's Hazardous Materials Storage and Emergency Response Act, Health and Safety Code Section 25550 et seq.) shall be grounds for termination of this License by Licensor in addition to actual damages and other remedies provided by law. Licensee shall immediately clean up and completely remove all Hazardous Substances placed by Licensee on, under, about or within the Premises or the Property, in a manner that is in all respects safe and in accordance with all applicable laws, rules and regulations.
18.6 In the event Hazardous Substances are discovered, Licensee shall disclose to Licensor the specific information regarding Licensee's discovery of any Hazardous Substances placed on, under, about or within the Premises or the Property by Licensee, and provide written documentation of its safe and legal disposal.
18.7 Breach of any of these covenants, terms, and conditions, and Licensee's failure to cure within thirty (30) days of Licensee's receipt of written notice from Licensor, shall give Licensor the authority to either immediately terminate this License or to shut down Licensee's operations thereon, at the sole discretion of Licensor. In either case, Licensee will continue to be liable under this License to remove and mitigate all Hazardous Substances placed by Licensee on, under, about or within the Premises or the Property. Licensee shall be responsible for, and bear the entire cost of removal and disposal of, all Hazardous Substances introduced to the Premises or the Property by Licensee during Licensee's period of use and possession of the Premises. Upon termination of this License, Licensee shall, in accordance with all laws, remove from the Premises any equipment or improvements placed on the Premises by Licensee that may be contaminated by Hazardous Substances.
18.8 The terms of this Hazardous Substances Section shall survive the expiration or earlier termination of this License.
19. COLLOCATION.
19.1 Licensee may sublicense the Premises to any qualified third -party communications provider consistent with this License and subject to the advance written consent of Licensor, which consent may be withheld in the Licensor's reasonable discretion. Prior to doing so, Licensee shall notify Licensor. Upon execution of such sublicense, Licensee shall pay Licensor as additional rent fifty percent (50%) of all revenue received from such sublicensee ("Collocation Fee"). The Collocation Fee shall be paid in the same manner and subject to the same requirements and conditions as the License Fee. However, in no event shall the Collocation Fee be less than Twelve thousand five hundred dollars ($12,500) per annum per sublicensee. This minimum Collocation Fee amount shall be adjusted through the term of this License in the same manner as the License Fee. Moreover, in the event that a proposed sublicensee requires additional ground space outside of the Premises, it shall enter into a separate license with Licensor to do so or this License may be amended to provide for such additional space.
Licensor may grant or deny such requests in its sole discretion, including conditioning execution of such new or amended agreements on the payment of additional rent.
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19.2 Any attempted or unauthorized assignment or sub -license shall be void and shall be cause for immediate termination of this License by Licensor. The acceptance of License Fees by Licensor from any person other than Licensee or an authorized assignee shall not be deemed to be a waiver by Licensor of any provision hereof. Consent to one assignment shall not be deemed consent to any subsequent assignment.
19.3 Requests for consent to assignments shall be submitted to Licensor to the address set forth in the above Notices Section.
20. SUCCESSORS AND ASSIGNS.
This License, and all of the provisions hereof, shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns. No customer, other person or entity other than the parties shall be deemed to be a third -party beneficiary hereof, and nothing in this License, either express or implied, is intended to confer upon any customer or other person or entity, other than the parties and their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this License.
21. ENTIRE LICENSE AGREEMENT.
This License contains the entire understanding between the Licensor and Licensee with respect to its subject matter, and supersedes all prior agreements or licenses, oral or written, and all prior or contemporaneous discussions or negotiations between the Parties, and cannot be amended except in writing signed by both Parties.
22. INDEPENDENT CONTRACTORS.
Licensee's contractors, agents and representatives are independent contractors of Licensee, and are not employees or independent contractors of Licensor while on the Property, or while engaged in any work on the Property, including the construction, installation, maintenance or operation of the Facilities.
23. MISCELLANEOUS.
23.1 The prevailing Party in any litigation arising hereunder shall be entitled to recovery of its reasonable attorneys' fees and court costs. With respect to any provision in this License providing for payment or indemnification of attorneys' fees, such fees shall be deemed to include reasonable fees incurred through any applicable appeal process and shall include reasonable fees attributable to legal services provided by any in-house counsel and staff to the prevailing or indemnified Party. For purposes hereof, the services of in-house attorneys and their staff shall be valued at reasonable rates for independent counsel prevailing in the metropolitan area in which such counsel and staff practice.
23.2 Each Party agrees to furnish to the other, within thirty (30) business days after request, such truthful, customary and reasonable estoppel information as the other may reasonably request.
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23.3 The section headings contained in this License shall not be considered to be a part hereof for purposes of interpreting or applying this License, but are for convenience only.
23.4 All of the recitals hereof are incorporated by this reference and are made a part hereof as though set forth at length herein.
23.5 This License constitutes the entire agreement and understanding of the Parties and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendment to this License must be in writing and executed by both Parties.
23.6 Either Party hereto that is represented in this transaction by a broker, agent or commission salesperson (a "Representative") shall be fully and exclusively responsible for the payment of any fee, commission or other compensation owing to such Representative, and shall indemnify and hold the other Party harmless from and against any claim to a fee, commission or other compensation asserted by such Representative, including reasonable attorneys' fees and costs incurred in defending such claim.
23.7 Each Party agrees to cooperate with the other in executing any commercially reasonable documents (including a Memorandum or short form of License) reasonably necessary to protect its rights under this License. Unless the laws of the state in which the Property is located prohibit the recordation of a memorandum or short form of License, neither Party shall record this License, but may record, in lieu thereof, the aforementioned Memorandum or short form of License. Either Party may record an easement agreement.
23.8 This License shall be construed in accordance with the laws of the county and state in which the Premises are located.
23.9 If any term of this License is found to be void or invalid, such invalidity shall not affect the remaining terms of this License, which shall continue in full force and effect.
23.10 Licensor shall be entitled to reimbursement from Licensee for Licensor's actual costs, including but not limited to administrative, legal, engineering, and consultant costs, should Licensor perform any work at the request of Licensee under this License or engage counsel due to such request by Licensee ("Licensor's Costs"), including but not limited to requests for review or approval of site plans or modifications to the Facilities or for work that relates to Licensee's use of the Facilities. Licensee shall pay Licensor such costs within thirty (30) days of Licensee's receipt of an invoice from Licensor. Upon request Licensor shall provide Licensee with documentation of Licensor's Costs; provided, however, such request from Licensee shall not delay Licensee's obligation to pay Licensor for Licensor's Costs within the foregoing time period. Should Licensee desire to contest, in good faith, the validity or the amount of the invoiced Licensor's Costs, Licensee must pay Licensor's Costs under protest, and may thereafter use such administrative, appellate, or other proceedings as may be appropriate in the jurisdiction.
Licensor shall cooperate with respect to the commencement and prosecution of any such
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proceedings, but Licensor shall be entitled to recover from Licensee, regardless of the proceeding's success, actual expenses for any administrative or legal service made necessary by Licensee's request. The expense of any such proceedings shall be borne by Licensee and any refunds secured as a result of Licensee's action shall belong to Licensee, to the extent the amounts were originally paid by Licensee. Nothing in this Miscellaneous Section shall limit Licensor's ability to recover additional costs to which it is entitled under this License or by law.
24. MORTGAGE SUBORDINATION.
This License is and shall be subject and subordinate to all ground or underlying leases of the entire Property and to all mortgages, deeds of trust and similar security documents which may be secured upon the Property as of the Effective Date, and to all renewals, modifications, consolidations, and extensions thereof. At Licensor's option, this License shall be subordinate to any future master lease, ground lease, mortgage, deed of trust or other security interest (a "Future Mortgage") by Licensor which from time to time may encumber all or part of the Property or right-of-way; provided, however, as a condition precedent to Licensee being required to subordinate its interest in this License to any Future Mortgage covering the Property, Licensor shall obtain for Licensee's benefit a non -disturbance and attornment agreement for Licensee's benefit in the form reasonably satisfactory to Licensee, which shall recognize Licensee's right to remain in occupancy of and have access to the Premises as long as Licensee is not in default of this License beyond applicable notice and cure periods
25. RADIO FREQUENCY (RF) SIGNAGE AND NOTICES.
Licensee shall install signs alerting the public, but especially workers and public safety officials, of any radio frequency emissions or other safety issues. These signs shall comply with Occupational Health and Safety Administration ("OSHA") 1910.145 and OSHA Code of Federal Regulations (CFR) 1926.200. In addition, Licensee and any permitted Sublicensee are referred to two recent FCC and OSHA enforcements orders for guidance on signage at www.fcc.gov/eb/Orders/2007/DA-07-549A1.html and www.fcc.gov/eb/Orders/2007/DA-07-2138A1.html .
26. AMENDMENTS.
The provisions of this License may be amended only by mutual written consent of the Parties.
27. NO RELOCATION ASSISTANCE.
Licensee acknowledges that Licensee is not entitled to relocation assistance, or any other benefits under the Uniform Relocation Assistance Act, or any other applicable provision of law upon termination of this License.
28. TIME.
Time is of the essence of this License.
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29. COUNTERPARTS.
This License may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute a single instrument.
Signed facsimile and electronic copies of this License shall legally bind the parties to the same extent as original documents.
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IN WITNESS WHEREOF, the Parties hereto have executed this License as of the date last written below.
"LICENSEE" "LICENSOR"
DISH WIRELESS L.L.C., a Colorado CITY OF SANTA MARIA, a political Limited Liability Company subdivision of the State of California Date Signed: Date Signed:
By: By:
DAVID MAYO
Executive Vice President,
Network Development
SHAD S. SPRINGER, P.E., MPA
Director of Utilities
Address: 5701 Santa Fe Drive Address: 2065 East Main Street Littleton, CO 80120 Santa Maria, CA 93454
Fax:
Phone: (844) 924-4186 Phone: (805) 925-0951
ATTEST:
By:
Fax: (805) 928-7240
Chief Deputy City Clerk
APPROVED AS TO FORM
Risk Manager
City Attorney
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
Real property In the City of Santa Maria, County of Santa Barbara, State of California, described as follows:
PARCEL ONE:
THAT PORTION OF LOT B OF THE HARRIS TRACT, IN THE CITY OF SANTA MARIA COUNTY
OF SANTA BARBARA, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 1 AT PAGE 89 OF MAPS AND SURVEYS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF THE NORTHEAST 1/4 OF SECTION 10, TOWNSHIP 10 NORTH, RANGE 34 WEST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN ON A MAP OF SURVEY RECORDED IN BOOK 21 AT PAGE 92 OF MAPS AND SURVEYS, SANTA BARBARA COUNTY RECORDS; THENCE NORTH 0° 42' 19" EAST ALONG THE CENTER LINE OF THE PACIFIC COAST RAILWAY, AS SHOWN ON SAID MAP, 25.00 FEET; THENCE SOUTH 89° 34' 41" EAST ALONG A LINE 25.00 FEET NORTH OF AND PARALLEL TO THE CENTER LINE OF ALVIN STREET, AS SHOWN ON SAID MAP, 30.00 FEET TO A 2 INCH PIPE MONUMENT SET AT THE SOUTHWEST CORNER OF LOT B OF THE HARRIS TRACT, AS SHOWN ON SAID MAP; THENCE NORTH 0° 45' 19" EAST ALONG THE WEST LINE OF SAID LOT B, 150.00 FEET TO A 1-1/2 INCH PIPE MONUMENT MARKED "L.S. 2293", SAID PIPE MONUMENT BEING THE TRUE POINT OF BEGINNING OF THE PROPERTY HEREIN TO BE DESCRIBED; THENCE CONTINUING ALONG THE WEST LINE OF SAID LOT B, NORTH 0° 42' 19" EAST 1147.09 FEET TO A 2 INCH PIPE MONUMENT SET AT THE NORTHWEST CORNER OF SAID LOT B; THENCE SOUTH 89° 37' 21" EAST ALONG THE NORTH LINE OF SAID LOT B, 444.40 FEET TO A 2 INCH PIPE MONUMENT SET AT THE
NORTHEAST CORNER OF SAID LOT B, SAID NORTHEAST CORNER ALSO BEING THE NORTHWEST CORNER OF MCMILLAN MANOR TRACT NO. 6, AS SHOWN ON MAP RECORDED IN MAP BOOK 15 AT PAGE 290, SANTA BARBARA COUNTY RECORDS; THENCE SOUTH 0° 39' 43" WEST ALONG THE EAST LINE OF SAID LOT B, 1147.43 FEET TO A 1- 1/2 INCH PIPE MONUMENT MARKED "LS. 2293"; THENCE NORTH 89° 34' 41" WEST A LONG A LINE 150.00 FEET NORTH OF AND PARALLEL TO THE NORTH LINE OF SAID ALVIN STREET, 445.23 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM ALL THAT PORTION CONVEYED TO THE SANTA MARIA SCHOOL DISTRICT, BY DEED RECORDED MARCH 7, 1955, IN BOOK 1302, PAGE 70, OFFICIAL RECORDS OF SANTA BARBARA COUNTY.
PARCEL TWO:
AN EASEMENT FOR INSTALLING AND MAINTAINING A PUBLIC STREET, ASSOCIATED
WALKS AND UTILITIES, SAID DESCRIPTION IS MORE FULLY DESCRIBED ON SAID DEED RECORDED MARCH 7,1955, IN BOOK 1302, PAGE 70, OFFICIAL RECORDS OF SANTA BARBARA COUNTY.
APN: 119-010-003
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EXHIBIT "B"
DESCRIPTION AND DEPICTION OF PREMISES AND FACILITIES
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D. That the proposed project will have no adverse effect upon abutting property because the proposed monopole and accessory equipment is not more Impactful than the existing PG&E towers and other sports -field light poles in the vicinity. The monopole is replacing existing lighting and is designed to be the minimum height required to provide the needed coverage for the area. The new monopole is tall enough to allow for future collocation for other service providers at a lower height which furthers the requirements of the City's Guidelines for Telecommunications Facilities.
There are several tall sports -field light poles and trees of similar height adjacent to the proposed monopole and throughout the park which are visually compatible with the proposed project. The existing sports -filed light poles will also assist in blending the antennas into the skyline.
Conditions have been incorporated into the permit to minimize impacts to abutting property and to meet the requirements of the City's Guidelines for Telecommunications Facilities. These conditions include shrub and tree planting to screen the proposed accessory equipment and requiring that all accessory equipment match proposed screening in appearance.
E. That the establishment, maintenance and/or conducting of the project for which the planned development review is sought will not, under the circumstances of the particular case, be detrimental to the health, safety, morals, or welfare of persons residing or working in the neighborhood of such project and will not, under the circumstances of the particular case, be detrimental to the public welfare, injurious to property or improvements in said neighborhood or contrary to its orderly development because the use complies with Federal Communication Commission (FCC) requirements.
F. That the conditions of approval stated in the penult are necessary to protect the public health, safety and general welfare.
G. The project is a Class 3 Categorical Exemption based on Section 15303 of the State Guidelines for the California Environmental Quality Ad ("CEQA"). This exemption is for the new construction or conversion of small structures. None of the exceptions to the Class 3 Categorical Exemption that are listed in Sedion 15300.2 of the State CEOA Guidelines would apply. No further environmental review Is required.
CONDITIONS OF APPROVAL
The project is approved subject to the following Conditions of Approval:
Community Development Department
1. Proled Description. The permittee shall comply with the project description and plans titled Dish Wireless Atkinson Park dated February 22, 2022 and Conditions of Approval of this permit. Any changes from the project description, Plan Set, or conditions may require a permit amendment. Contact Planning prior to changing anything described on the Plan Set or In the project description. The fence enclosing the eauliment area shall not exceed 6' In height.
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2. Shrub Planting. Shrubs shall be planted along the project frontage between Railroad Avenue and the western perimeter of the fenced enclosure to better screen the facility. The shrub planting shall be included on the landscape plan submitted with the building permit required for the project.
3. FCC Compliance. As part of the building permit submittal, the applicant shall submit a report by a professional engineer demonstrating that the proposed facility will comply with all applicable FCC regulations for radio -frequency emissions.
4. Cables and Wires All cable and wire connections between the equipment yard and the tower shall be located underground. All cables and wiring for the antennas and the sports field lighting shall be ran within the pole.
5. Coordination Recreation and Parks. The applicant shall coordinate the construction schedule with the Recreation and Parks Department. Methods of preservation of the condition of the sports facility and held during construction shall be detailed in the building permit plan submittal. Upon completion of the facility, the applicant shall coordinate the schedule of maintenance and service of the facility with the Recreation and Parks Department.
6. Site Repair. Prior to the final inspection, any park improvement and/or landscape and irrigation damaged during construction shall be repaired to the satisfaction of City staff.
7. Fencing Maintenance. The applicant shall maintain the equipment enclosure yard fencing and slats in an attractive manner at all times. Any fencing or slats that are damaged or wom shall be replaced with materials and colors that match the remaining fencing and slats, within 72 hours of the occurrence of such damage.
8. Ongoing Site Maintenance. The entire site shall be permanently maintained free of accumulated dirt and litter and in an otherwise neat and attractive manner and adhere to the requirements of the Santa Maria Municipal Code. Any graffiti on the property shall be promptly painted out.
Failure to comply with this condition is a public nuisance and is subject to the adopted Citation Ordinance of the City of Santa Maria.
9. Eauipment appearance. The color of any new or relocated equlpmeM in the proposed equipment shelter shall be painted to match or blend with the existing improvements. All connections and conduits from the pole to the equipment shelter shall be under -grounded.
10. Mechanical Equipment Screening. The proposed equipment yard chain -link fencing shall include a mesh windscreen subject to Planning Division approval during the plan check process.
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11. Noise. No significant, sustained noise should be emitted from the equipment contained within the equipment shelter (e.g. that no constant humming, buzzing, vibration or any other audible noise will occur). Otherwise, if any audible noise generation is anticipated, the potential noise source and appropriate sound mitigation measures shall be subject to the approval of the Planning Division during the plan check review process.
12. Emeraencv Generator Testing Use of a generator shall be limited to service testing and emergency use in the event of power outage only. Service testing shall be limited to no more than once every two weeks, for a duration of approximately one hour.
Testing shall be limited to daytime hours between the hours of 10:00 a.m. and 5:00 p.m.
13. Emeraencv Generator Air Quality and Odors. Prior to issuance of a Building Permit, a clearance from the Santa Barbara County Air Pollution Control District will be required for the use and operation of the emergency generator. At no time should diesel leakage or spillage occur resulting in undue odor impacts.
14. Landscape and Tree Maintenance. The applicant shall develop landscape and tree maintenance standards that shall be provided to any landscape contractor hired to work on the site. The standards shall be reviewed and approved by the Planning Division prior to first occupancy. The program shall require:
A. All on -site trees be properly maintained to retain a natural shape and size for the long-term health of the tree consistent with the natural growth pattem of its particular species and current American National Standards Institute A300 standards.
B. Any tree topped, severely pruned or severely thinned out, subject to the determination of the Planning Division, shall require a large -size replacement.
C. Ground cover and shrubbery shall be regularly maintained and pruned in a manner that encourages healthy growth and flower production. Shrubs shall not be severely sheered or formed into unnatural shapes.
15. Tree Plantina The project shall provide the trees depicted on the landscape plan.
The trees species selected shall be subject to Planning Staff review according to Planning Commission approval. Trees shall be a minimum of 15 -gallon size.
16. Landscape Irrigation Water Meter. A separate appropriately -sized irrigation meter is required for new non-residential projects with irrigated landscape areas totaling 1,000 square feet or greater, and for new residential projects with irrigated landscape areas totaling 5,000 square feet or greater. If a sub -meter is proposed for irrigation, it shall be a privately held and maintained meter, provided by the applicant, installed after the main water meter.
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17. Liaht Standards. All on -site lighting shall comply with the Municipal Code Performance Standards. A photometric plan is required at the building permit stage, subject to Planning Division approval.
18. Utilities. All new public utility services, including electrical, telephone and community television antenna services, shall be placed underground in accordance with City requirements. Location of all transformer boxes and utility equipment shall be approved by the Planning Division prior to installation. All transformer boxes and utility equipment shall be underground wherever feasible. If undergrounding is not possible, the equipment should be painted to match the surroundings and placed in inconspicuous areas out of public view.
19. Performance Standards. The requirements of the Citys performance standards with respect to odor, noise, smoke, vibration and discharge of liquid and solid waste shall be maintained.
20. AB 1600 Fees. AB 1600 fees apply to this project and are based on the fees in effect at the time the building permit Is Issued.
21. Aaencv Reauirements. The applicant shall ascertain and comply with all Federal, State, County and City requirements as are applicable to this project.
22. Construction Documents. A building permit application, plans and specifications demonstrating compliance with current Califomia Building Code (CBC) requirements must be submitted and permits obtained prior to construction.
Required plans for the project shall be prepared signed and sealed by a California registered design professional, i.e. architect or engineer. A copy of these conditions shall be incorporated into all construction documents.
23. Soils Report Reaulred. A soils report will be required for the project and must be submitted with the building permit application. CBC 1803.
24. Indemnification. The applicant shall agree to indemnify, defend (with counsel reasonably approved by the City), and hold harmless the City of Santa Maria and Its officers, officials, employees, and agents from and against any and all claims, demands, actions, proceedings, lawsuits, losses, damages, judgments and/or liabilities by third parties arising out of, related to, or in connection with the project application or to attack, set aside, void, or annul, In whole or in part, an approval of the project application by the City and any related environmental approvals, development approvals or project conditions. The Applicant shall reimburse the City, its agents, officers, officials, or employees, for any court costs and attomey's fees that the City, its agents, officers, officials, or employees may be required by a court to pay as a result of such action. The City may, at its sole discretion, participate at its own expense in the defense of any such action but such participation shall not relieve Applicant of his/her obligations under this provision.
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Public Works Department
ENGINEERING CONDITIONS
25. Building Plans. At time of building plan submittal, the developer shall identify the following items on the site or utility plan for the subject project:
A. Location and sizes of all proposed and existing water mains, sewer mains, water meters, water service lines, backfiow prevention devices, private sewer lateral connections, and storm drainage facilities in abutting streets or on the project site.
B. All parcel lines and easements crossing the project site.
C. Locations and dimensions of all existing and proposed driveways and sidewalks
D. Location of existing and proposed fire hydrants
E. Required public improvements.
F. Limits of frontage improvements
STREET AND FRONTAGE CONDITIONS
26. Frontage Repair. The developer shall repair any cracked or broken curb, gutter, sidewalk, or alley within the project frontage. City Public Works Inspection staff will determine the extent of the sidewalk and curb and gutter repair in the field prior to construction.
27. Sidewalk ADA Compliance. The developer shall remove and replace any sidewalk within the project frontage that does not meet ADA cross -slope requirements.
28. Intersections. Sight distance requirements shall be maintained at the intersection of any street, alley, or driveway improved for vehicular traffic per City of Santa Maria Municipal Code (S.M.M.C.) Sections 12-27.02 and 12-27.03.
29. City Encroachment Permit. The developer shall obtain an encroachment permit from the Public Works Engineering Division prior to any work in public streets, alleys, or easements (S.M.M.C. Section 8-6.06).
30. facility Easements, Prior to Issuance of building permits, the developer shall provide reciprocal access or utility and drainage easements if required by the Public Works Department for the subject project.
31. City Dedicated Easements. If any easements are required to be dedicated or vacated, the developer shall submit legal descriptions, sketches (8.5' x 11' City Standard Format), closure calculations, current title report, and payment of processing fees. All paperwork shall be approved prior to issuance of building permits and recorded prior to occupancy.
32. Modification of Conditions. The Director of Public Works, Planning Commission, and City Council reserve the right to modify these conditions if they deem it necessary to ensure compliance of the project with Chapter 8-6 of the S.M.M.C.
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Recreation and Parks Department
33. Tree Species. Four trees will be required along Railroad Avenue placed between back of sidewalk and sport field fence. Trees will be California Live Oaks, Quercus agrifolia.
34. Sitework. Telecommunication pole support system to be placed inside parking lot, overall aesthetic of facility to complement the existing park and landscape area with additional shrubbery. Replacement pole will have same or equivalent illumination system installed as fixtures removed.
35. Tree Specifications. The street trees shall be 24 -inch box in size and have a minimum caliper of 1.5 inches. The trees shall be planted six feet behind the sidewalk by a licensed landscape contractor in accordance with the plans and specifications of the Recreation and Parks Department. An irrigation system shall be provided for the trees.
36. Tree Planting. Any nursery stock tree planted without inspection and approval by the Recreation and Parks Department shall be deemed defective and be removed by the person(s) responsible for the planting at their own expense. All plant material shall not be root bound or contain girdling roots. Street tree location(s) shall be approved onsite by the Special Districts Supervisor prior to installation.
37. Landscape Plans. The following shall be noted on the landscape plan: the final locations of street trees shall be determined on -site by the Special Districts Supervisor. Twenty-four hour notice is required for inspection prior to planting, (805) 925-0951 ext. 2346. Installation shall be in accordance with Recreation and Parks Department specifications'
NOTES:
In accordance with Section 12-35.109 of the Munidpd Code, the permit is riot valid until the 15th calendar day following the issuance of the permit presiding no appeal Skied; or lf an appeals filed, this permit s not valid until the effective date of the find action an the appeal.
In accordance with Sidon 12-35.501 of the Municipal Code, the City may nadily conditions of approval of the permit or may revolve the pernrt for non-compliance with any al the condibors of approval, or if any operations under the approved pemil result in detriment to the public heath, safety a welfare.
This permit WY not be valid until the applicant and property owner have submitted signed acknowledgment of their consent to the condsons, in accordance with Section 12-35.109 of the Santa Mane Municipal Code, to the Panning Division of the Community Development Department
In accordance with Sectm 12-35.501 of the Munidpd Code, this permit shall became null and void if the development authar¢ed is, a has been, unused, abandoned, discontinued, or development has not been commenced within a period of three (3) years. However, the approval body may consider extensions of time for additiand periods of up to two (2) years each, for a maximum overall permit Ire of seven (7) years. A widen request itdYying the need and the appropnate filing fee filed vuth the Community Development Department shall be submitted prior to the expiration date.
Failure to comply with any of the conditions stated above may be cause for revocation or modification at this permit, in addition to any other penalties provided by law.
All co ditians of approval are to be completed prior to occupancy unless otherwise slated, and are to be maintained in perPetvity
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